Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd - [2015] NSWCA 281 - NSWCA 2014 case summary — Zoe

NSWNSWCA

Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork & Scaffolding Pty Ltd

[2015] NSWCA 281

Court of Appeal (NSW)|2014-10-17|Before: Basten JA, Macfarlan JA, Gleeson JA

View original source

At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2014-10-17

Before

Basten JA, Macfarlan JA, Gleeson JA

Source

Original judgment source is linked above.

Judgment (50 paragraphs)

[1]

Introduction

From about 1963 to 1969 Mr George Dionysatos was employed by the first respondent (Acrow) as a scaffolder on the construction of the Sydney Opera House. He suffered from mesothelioma and died on 13 July 2012. Shortly prior to his death, he brought a claim in the Dust Diseases Tribunal (the Tribunal) against Acrow.
The proceedings commenced by Mr Dionysatos against Acrow were continued by the appellant as the legal personal representative of the deceased's estate (the Estate). Mr Dionysatos' entitlement to damages (which did not include any claim for future economic loss) did not depend on him surviving until judgment: Dust Diseases Tribunal Act 1989 (NSW) (the Tribunal Act), s 12B(2).
The amended statement of claim alleged that the cause of Mr Dionysatos' illness was his exposure to asbestos dust and fibre during the course of his employment with Acrow and that Acrow had been negligent in the performance of its duties as his employer by permitting his exposure to that dust and fibre. It was also alleged that Acrow had breached various statutory duties and contractual obligations.
Acrow denied liability. If liability was found, quantum was agreed except for one element of the damages claim.
After a hearing lasting a number of days, the Tribunal (constituted by Judge Curtis), by judgment dated 29 August 2013, upheld the Estate's claim against Acrow and awarded the Estate damages of $490,142: Dionisatos v Acrow Formwork and Scaffolding Pty Ltd; Acrow Formwork and Scaffolding Pty ltd v Gordian Runoff Ltd [2013] NSWDDT 8. That sum included a component of $147,853 by way of damages for Mr Dionysatos' loss of capacity to provide gratuitous domestic services for his wife, who suffers from dementia and other physical difficulties. Damages of that kind may be awarded pursuant to s 15B of the Civil Liability Act 2002 (NSW) if certain preconditions are satisfied.
In assessing the amount awarded for what may be described as "s 15B damages", the Tribunal deducted an amount of $207,072. This deduction reflected the value of compensation paid and payable to Mrs Dionysatos under the Workers' Compensation (Dust Diseases) Act 1942 (NSW) (Dust Diseases Act). The primary judge reasoned that the past and future compensation payments received by Mrs Dionysatos from the Dust Diseases Board (the Board) were in respect of the "same" loss as claimed by the Estate under s 15B and accordingly, this amount should be deducted from the damages awarded to the Estate to avoid double recovery.

[2]

Issues on appeal and cross-appeal

It is convenient to commence with Acrow's notice of cross-appeal. Ground 5, which related to damages, was withdrawn. Grounds 1 to 4 challenged certain findings of the Tribunal on the question of liability, but did not clearly identify an erroneous decision of the Tribunal in point of law. Counsel for Acrow accepted this deficiency in oral argument and proceeded to identify, by reference to Acrow's written submissions, three issues which were said to involve an erroneous decision in point of law - factual errors, duty of care and causation (tcpt CA 16/10/14 at 63, lines 25-32).
The issues raised by the asserted factual errors were whether his Honour's decisions: 1. that Mr Dionysatos was exposed to asbestos while working at the Opera House site; and 2. that Acrow knew, or should have known, that asbestos was being used on the site and about the dangers of asbestos at that time, were erroneous in point of law.
Those decisions were said to be based on either "no evidence" or insupportable inferences with respect to three factual findings relating to Mr Dionysatos' exposure to asbestos (set out at [93]) and two factual findings relating to Acrow's knowledge of that exposure (set out at [94]).
Counsel for Acrow acknowledged that if Acrow failed on its central submission challenging the asserted factual errors, then its other challenges on the questions of duty of care and causation would fall away (tcpt CA 16/10/14 at 61, lines 49-50).
The Estate's grounds of appeal were directed solely to the award of s 15B damages. Three issues are raised by the Estate, namely, whether his Honour's decisions: 1. in taking into account the existence of "filial duties" of other family members who are presently providing care and services to Mrs Dionysatos, and in consequence refusing to allow s 15B damages in respect of gratuitous care and services provided by Mr Dionysatos to his wife in periods when one or both of her children are now available to care for her; 2. to deduct compensation paid or payable to Mrs Dionysatos under the Dust Diseases Act valued at $207,072 when determining s 15B damages; and 3. to not treat the Estate's claim for s 15B damages as "damages for non-economic loss" for the purposes of s 12D of the Tribunal Act, were erroneous in point of law.
Acrow sought leave at the hearing to file a notice of contention seeking to uphold the Tribunal's decision that compensation paid or payable to Mrs Dionysatos under the Dust Diseases Act was deductible from the Estate's s 15B damages. Acrow placed reliance upon s 15B(6) of the Civil Liability Act (set out at [188]) which prevents an award of s 15B damages to a claimant (or the legal personal representative of a claimant) for any loss of the claimant's capacity to provide gratuitous domestic services to any dependant in certain circumstances, namely, if the dependant "has previously recovered damages in respect of that loss of capacity". The contention by Acrow was that Mrs Dionysatos had previously "recovered damages" within the meaning of s 15B(6) of the Civil Liability Act by reason of the compensation paid or payable under the Dust Diseases Act and accordingly s 15B(6) prevented the Estate from being awarded any s 15B damages at all.
Counsel for Acrow acknowledged that this was a new point which had not been raised before the Tribunal. Counsel further acknowledged that Acrow did not seek to set aside the judgment below, that is, the Estate could retain the s 15B damages even if the notice of contention was upheld (tcpt CA 16/10/14 at 28, lines 47-49).
Ultimately, the Estate did not object to the grant of leave to file a notice of contention on two conditions. Acrow accepted these conditions - namely, that Mrs Dionysatos (as the sole beneficiary of the Estate) can retain the s 15B damages awarded by the Tribunal to the Estate, whatever the outcome of the notice of contention, and that Acrow would pay the Estate's costs of the appeal, if Acrow succeeds solely on this new point (tcpt CA 16/10/14 at 34, line 50 - 35 at line 24).

[3]

The use of asbestos at the Opera House

A description of the Sydney Opera House site in the relevant period is required. The principal contractor was M R Hornibrook (NSW) Pty Ltd (Hornibrook). Acrow (then known as Cyclone Double-Grip Scaffolding Pty Ltd) was a subcontractor involved in scaffolding and rigging work in the construction of the Opera House. Acrow employed somewhere between 80 and 100 scaffolders and riggers on the site. One of those scaffolders was Mr Dionysatos.
Archival records of the Public Works Department of New South Wales (Public Works Department) record that the Opera House was constructed in three stages. Stage I comprised the basic structure of the podium. Stage II included the casting and erection of shell segments, tile lids and the completion of the sails. This work was current when Stage III commenced in 1966. Part of the work in Stage II included the painting and fireproofing of the Stage Tower steelwork, concrete cladding and timber floors for the major and minor halls. The fireproofing of the Stage Tower steelwork required the successful tenderer, S A Butler Pty Ltd, to supply and coat steelwork with limpet asbestos spray to give a 2 hour fire rating for columns and stanchions, trusses, and in addition, to supply and coat asbestos spray with hardened surface in areas where indicated: see schedule of rates dated 28 January 1966.
In addition to spraying asbestos on steel beams, asbestos was used elsewhere in the construction of the Opera House as part of the work in Stage III, involving the fireproofing of chequer plate platforms with limpet asbestos. Chequer plate platforms were fabricated from one-quarter inch thick rolled steel plates. Compressed "fibre" sheet was also used in the construction of the Opera House.
A Public Works Department General Index book (Index) to the Stage III works, entitled "Anatomy of Stage Three Construction and Completion", described the use of thick, flat asbestos cement sheets in several situations in vertical and horizontal surfaces. The supplier was noted in the Index as James Hardie Asbestos Pty Ltd (James Hardie). Evidence given by Mr Gazzard, a retired sales representative from James Hardie, confirmed that the basic components of compressed sheet were asbestos fibre, silica and cement. According to his evidence, compressed asbestos cement sheets were used in relation to floors for shoring, for formwork and the like. Mr Gazzard gave unchallenged evidence that he visited the Opera House during construction and observed compressed asbestos cement sheets supplied by James Hardie being used in the construction.
The Index described the use of sprayed asbestos and sprayed concrete in the Stage III works. Under the heading "Specifications Listing", there is a reference to sprayed asbestos ceiling linings. The Index also contains the following references to the use of sprayed asbestos and sprayed concrete: SPRAYED ASBESTOS This particular form of surface treatment, which in offering fire rating also contributed to noise level reduction will be found used in certain plant rooms particularly upper surfaces. The subcontractor responsible for the material and its application/installation was Bowsers Asphalt Pty Ltd. SPRAYED CONCRETE APPLICATION Sprayed concrete application was applied by Nucrete Pty Ltd of Sydney as subcontractors to the Hornibrook Group. The areas of this application were primarily those of the thin concrete external skin to the two major auditoria and between the enclosed space and the foyers and including the enclosure walls of the stage machinery tower to the Opera Theatre. Note the use of flat asbestos cement in these situations. The material is also used behind the treated bronze infilling elements at the junction of shells A3,A2 and B3,B2. Details as to thickness, reinforcement, finish and concrete composition will be found in the records of O.A.P., Structural Engineers. These applications are also referred to as thin concrete … .
The Index identifies the subcontractor responsible for the application of sprayed asbestos as Bowsers Asphalt Pty Ltd (Bowsers Asphalt). This is not to be confused with the spraying of asbestos on the Stage Tower steelwork as part of Stage II. So much is apparent from the identification earlier in the Index of the contributions of Bowsers Asphalt with respect to Stage III works. Other documents establish that Bowsers Asphalt was recommended for acceptance as the successful tenderer for applying sprayed asbestos in August 1970, being after the period relevant to the Estate's claim.
One further matter should be mentioned concerning the use of asbestos. Between 1990 and 2006 various asbestos surveys of the Opera House were conducted. Those documents were in evidence before the primary judge. A survey conducted in October 1990 provided a detailed description of the locations of asbestos-containing materials located during that survey. The author noted that the survey located only that asbestos which was exposed and that many areas could not be observed. In the survey summary, it was stated that typically asbestos material is present in a number of different forms including as vermiculite, containing chrysotile (white asbestos) packed in the ferulae and slab penetrations; asbestos cement cable trays and pipes; asbestos cement sheeting used as partitions, panels, walls, ceilings, floors, coverings etc. An updated asbestos survey dated 18 November 2005 noted, in relation to the Opera Stage Tower, that the steel frame has furring channels attached, which in turn has asbestos cement sheet cladding. That survey described the asbestos cement sheet being used as a solid form on to which the spray-crete has been applied to the exterior side forming a composite material.
Unsurprisingly it was not in issue before the Tribunal that asbestos was used on the Opera House site. Counsel for Acrow acknowledged so much in his closing submissions in the Tribunal. Acrow's essential contention in the Tribunal, and repeated in this Court, is that there is no evidence that Mr Dionysatos was relevantly exposed to asbestos while working on the Opera House site.

[5]

Evidence of Mr Dionysatos

Mr Dionysatos gave affidavit evidence, which the primary judge accepted, concerning his scaffolding work at the Opera House site between 1963 and 1969: 11. My job involved putting up scaffolding for use by various trades including plumbers, electricians, carpenters and laggers. The plumbers installed pipes and the electricians installed wires and switchboards. The carpenters put up the formwork, external and internal structures. The laggers put on insulation on pipes, beams and concrete blocks [sic]. I worked very closely with all of these trades. I also took down scaffolding and removed formwork timber. I also did general cleaning work including picking up off cuts and sweeping. 12. I worked within metres of the various trades as they worked. I moved scaffolding around at the request of tradesmen. I was frequently directly underneath the work of these tradesmen. The dust they created flowed down onto me. 13. On a number of occasions, while I was erecting and moving scaffolding, spraying was going on near where I was working. The spray was put on concrete blocks and on steel beams. The spraying involved a few men who used a spray machine which had a long rubber hose. A powder like substance was put in the back of the machine and the spray mixture came out of the hose. One man held the hose while another fed the powder into the machine. The man with the hose looked like a fireman. The spraying process was very dusty. I could see dust in the air for about 20 to 30 metres around where the spraying was carried out. The dust went on to the floor. As part of my job I cleaned up the floor including picking up off cuts and sweeping. I swept up the dust from the spray. As the overspray dried and we walked around in it more dust was stirred up. I inhaled this dust on a regular basis. 14. Some of the spraying was done on scaffolds. I installed the scaffolds and helped to move them around while the spraying was going on. The dust got all over the scaffolds. I cleaned up the scaffolds to get rid of the dust. I turned over the planks and the dust went into the air and onto the floor. I swept up the dust. I got dust on me and my clothes from the spraying work. I inhaled this dust. 15. Insulation was put around the pipes and on the floor for soundproofing. On the floor the insulation was in the form of a thick board or sheet, grey in colour and about 1 to 2 inches thick. On occasions I worked nearby when the sheets were cut using a heavy duty power saw. A lot of dust went into the air around me and on my clothes from this process. 16. About once a fortnight when we finished working on a section and took down the scaffolding we cleaned up the area. I swept up dust and off cuts on the floor. I also cleaned the planks on the scaffold as I moved them around, usually by turning over the planks. This was a very dusty job. I saw the dust in the air in this process. I inhaled this dust. 17. At the Opera house I worked 6 days a week from 7.00am to 5.00pm. I also did overtime. There was plenty of overtime. I often worked 16 hour days. There was a period of 3 months when I worked 7 days a week. 18. I left the site before the building work was complete. The scaffolding work was coming to an end so I looked for work elsewhere. 19. I was not told to stay away from where the spraying was taking place. I was not given a mask to wear or told anything about asbestos. Had I been told to wear a mask I would have. If I knew asbestos could kill me I would have left the job and found other work.

[6]

Evidence of Mr Tsoukalas

Mr Steve Tsoukalas was employed by the principal contractor, Hornibrook, in 1968. He spent about the first six months using a jackhammer and then started work supplying the scaffolders with scaffold pipes and the other equipment required to raise the scaffold. Towards the end of 1968 he was promoted to foreman of a gang charged with moving the steel scaffolding pieces from place to place for assembly and disassembly by employees of Acrow. One of the scaffolders was Mr Dionysatos, who Mr Tsoukalas described as a good scaffolder, a strong fellow with balance, and able to carry out "very high scaffold". This work was part of Stage III of the Opera House, when finishing the "internal job".
Mr Tsoukalas gave evidence concerning the spraying of material that he believed was asbestos onto steel beams; that this work began in 1968; and that the work was frequent, being carried out "maybe every day in the different areas". The primary judge recorded Mr Tsoukalas' observations of the air where the spraying occurred. Mr Tsoukalas described "a lot of dust like a cloud everywhere". He also described the workmen using rags for protection from the dust because there were no masks provided. He said that scaffolding was used by the sprayers and, an air hose was used for cleaning up residue.
Mr Tsoukalas also gave evidence concerning the installation of soundproofing board from 1968. The primary judge noted that this material was removed from the Opera House in an asbestos removal program conducted in 1990. His Honour inferred that it did contain asbestos: at [8]. Notably this finding is not challenged. The installation of soundproofing board was part of what was referred to as the Stage III work. Mr Tsoukalas gave evidence that this work commenced from 1968. He described the compressed sheet as about three-quarters of an inch thick and used "for the acoustic"; it was cut with a power saw with a special wheel; and when it was cut it created "dust everywhere". Mr Tsoukalas said that the fibro panels were used to hide the walls, and scaffolding was involved in that process. In addition, he said that the fibro cement was used "in every area" - "studios and projectors room and acoustic doors [sic]".
The primary judge found that Mr Dionysatos' evidence was substantially corroborated by the evidence of Mr Tsoukalas. Acrow challenges that finding, but only insofar as the evidence relates to the spraying of asbestos on steel beams.

[7]

Evidence of Mr Clee

Mr Barry Clee was employed as an asbestos sprayer by Australian Asbestos (NSW) Pty Ltd (Australian Asbestos) from 1961 to about 31 October 1966. He gave affidavit evidence (sworn in August 1997) in connection with his own proceedings, in which he described the work of asbestos spraying generally. He said that spraying was either done from the floor or scaffold and that most of the time it was done off scaffolds being a mobile scaffold. He gave the following description of the spraying work: When the spraying work was taking place the man that held the gun was required to hold the gun approximately eighteen inches from the surface being sprayed. The gun was held at an angle. As the mix poured out of the end of the nozzle it blew on to the surface. There was not a perfect adhesion of the spray mix on to the surface. A lot of the spray mix fell off the surface and fell back on to the sprayer on the scaffold. There was a lot of overspray. The overspray fell on to the sprayer and in particular on to his face and overalls. The sprayer worked permanently in an atmosphere where there was dried asbestos dust and fibre all around him all day. We put up hessian screens. This concentrated the dust and it covered all three men in the team. It was a thick cloud in the air over us all.
Mr Clee also described the cleaning up required after each job was finished. He said: The whole area had to be swept up. We had to sweep up daily. Clouds of dust were generated when we did the sweeping up. The overspray and the spills were swept into piles and the piles were shovelled up into the paper bags which were then turfed out on the site or put onto the back of a truck and taken back to the factory.
Mr Clee gave evidence of many of the jobs he worked on. These included spraying asbestos at the Sydney Opera House for a period of two to three weeks. Mr Clee did not specify a date when this work occurred. He described this job as being right at the top of the building, spraying beams at the top of the shells, that he was really high up and had to climb hundreds of stairs to get up there.

[8]

Archival documents

The primary judge observed that it was quite apparent from archival documents in evidence that asbestos spraying was carried out extensively in the construction of the Opera House: at [12]. His Honour referred to some of this material at [12]-[23] of his reasons. Acrow challenges the use which his Honour made of some of this material for the inference drawn that in the course of 10 consecutive days in February 1966, at least eight trusses were sprayed with asbestos, and that Mr Dionysatos was continuously exposed to visibly high concentrations of asbestos dust. Accordingly, it is necessary to set out the relevant material as identified by the primary judge, being: 1. on 28 January 1966, S A Butler Pty Ltd, a steelwork subcontractor had tendered for "Coating of Stage Tower Steelwork". The tender provided for application of limpet asbestos sprayed to 1330 sq yards of columns and stanchions, 770 sq yards of trusses, a total of 2100 sq yards, with a required thickness of one inch to give a fire protection rating of two hours: at [12]. In addition, the tender provided for the application of 280 sq yards "hardened surface". His Honour found that this material was "Bulldog cement", a product of Australian Asbestos which comprised chrysotile asbestos mixed with white plaster powder: at [13] and [15]. This finding is not challenged; 2. minutes of a site meeting held on 1 February 1966 which recorded that Australian Asbestos were expected to start work the following day, that it was expected that it would take 10 days to complete the application of asbestos, and that a finishing coat of "Bulldog cement" was to be applied to protect the surface: at [14]; 3. minutes of a site meeting on 9 February 1966 recorded that a contract had been signed by Nucrete Pty Ltd (Nucrete) to perform certain works including spraying cement on steelwork, a process known as "guniting". His Honour found that there was no reference to guniting taking place in the minutes between that date and 1 March 1966: at [17]. This finding is not challenged. His Honour also observed that the minutes of 1 March 1966 recorded that in some areas on truss 6 the finishing coat (of bulldog cement) was too thin and required further spraying: at [18]; 4. minutes of the site meeting on 1 March 1966 also specifically referred to truss 9 in the minor hall being ready for the application of asbestos by Australian Asbestos: at [16]; 5. minutes of a site meeting dated 4 May 1966 indicated that the contract with Australian Asbestos envisaged asbestos spraying on a total of 9 trusses: at [16]. (His Honour's reference to the site minutes dated 4 May 1966 was an error. What his Honour described in relation to the asbestos spraying of a total of 9 trusses, seems to have been based on the letter identified at (6) below); and 6. a letter dated 4 May 1966 from the Under Secretary to the Department of Public Works apparently addressed to Hornibrook confirming that the proposal to protect the main horizontal girders in Bents 1 and 2 in the Stage Tower of the major hall and 1 and 9 in the minor hall with sprayed limpet asbestos, with no application of fire insulation to the remainder of the steel tower, was acceptable: at [22].
The archival documents also included the Stage III specification for the supply and erection of platforms, stairways and other miscellaneous steelwork items required in construction with mechanical services. His Honour noted (at [21]) that this specification required that limpet asbestos be sprayed on the underside of platforms and structural supports, to a density of between 9 and 12 pounds per cubic foot.

[10]

Mr Dionysatos' exposure to asbestos

The primary judge accepted entirely the evidence of Mr Dionysatos, Mr Tsoukalas and Mr Clee: at [24]. His Honour did not accept that the site minutes which referred to asbestos spraying in February 1966, were exhaustive as to the use of asbestos. He noted that the site minutes did not record the spraying of asbestos in a number of areas - the main horizontal girders in Bents 1 and 2, and on truss 9. His Honour expressed his preference for the evidence of Mr Dionysatos and Mr Tsoukalas over the site minutes: at [25].
The primary judge made the following findings concerning the fact and the extent to which Mr Dionysatos was exposed to asbestos dust at the Opera House site: 26. I find that the late Mr Dionysatos, in the course of his employment on the Opera House site, was occasionally exposed to visibly high concentrations of asbestos dust created by asbestos spraying and the cutting of asbestos-containing soundproofing board. This dust was stirred up by the work of cleaning and dismantling scaffolding and at times presented as a cloud. Workers in the vicinity sometimes placed cloths over their faces to assist in breathing. This exposure to asbestos dust, whilst intermittent, was intense. 27. I also find that over a period of approximately 10 days in February 1966 Mr Dionysatos was continuously exposed to this concentration of asbestos dust. During that time Australian Asbestos sprayed 8 trusses. It is reasonable to suppose that the formwork was assembled and disassembled on eight occasions, that is nearly every day during this period. 28. I reject [Acrow's] submission that Mr Dionysatos may have been exposed to Gunite spraying in this period rather than asbestos spraying.
The finding at [26] was based upon an acceptance of the evidence of Mr Dionysatos, who was not cross-examined on the affidavit he swore the day before he died; the evidence of Mr Clee who sprayed asbestos at the Opera House over a two to three week period; and the evidence of Mr Tsoukalas who was employed by the principal contractor, Hornibrook in 1968 and 1969. The findings were also based on archival documents including minutes of site meetings, which his Honour accepted recorded asbestos spraying being carried out extensively in the construction of the Opera House: at [12].
The finding at [27] was based on an inference drawn by the primary judge (at [19]) that in the course of 10 consecutive days in February 1966 at least eight trusses were sprayed with asbestos. This inference was drawn by his Honour from the affidavit evidence of Mr Clee and the references to asbestos spraying in the archival documents.
The finding at [28] with respect to "Gunite spraying", is a reference to spraying a mixture of cement, sand and water pressurised with compressed air on steelwork by a process known as guniting. His Honour found that the chances that Mr Dionysatos over the years 1963-1969 was exclusively exposed to gunite are "vanishingly small": at [40].
The primary judge further found that the description by Mr Dionysatos of the spraying operations to which he was exposed at the Opera House site was consistent with descriptions by Mr Clee of the work he performed at that site as an asbestos sprayer: at [31].

[11]

Acrow's knowledge of exposure and foreseeability of Mr Dionysatos' injury

The primary judge rejected Acrow's contention that its foreman or supervisors did not know that asbestos spraying was taking place during the first two weeks of February 1966, given the enormous amounts of asbestos spraying that occurred during that time. As to subsequent exposures, his Honour found that even if Acrow did not know, it should have known, because no employer should remain ignorant of the conditions in which its employees laboured: at [41].
As to the foreseeability of the risk of injury, the primary judge referred to the Schedule of Recommended Maximum Concentrations of Atmospheric Contaminants for Occupational Exposures published by the National Health and Medical Research Council (NHMRC) in 1964. The recommendation by the NHMRC in respect of chrysotile and amosite asbestos was that long-term average fibre concentration of the air breathed by the worker should not significantly exceed four fibres per cubic centimetre of air, which was the equivalent to 5 million particles per cubic foot of air: at [43]-[44]. His Honour noted that Acrow did not call any evidence to suggest that it knew of this recommendation, or attempted to comply with it: at [46].
His Honour was not satisfied that Mr Dionysatos was exposed to concentrations of asbestos dust in excess of the recommendations of the NHMRC (at [48]). Nonetheless he considered that exposure in excess of the recommendations of the NHMRC was not determinative of whether the exposure created a foreseeable risk of harm: at [49]. Reference was made to Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449 at 494.
His Honour accepted that, without having cause to enquire, Acrow may have reasonably remained ignorant of the body of information that existed by at least 1965 to the effect that a relatively minor exposure to asbestos created a possibility of contracting mesothelioma. This was a reference to information contained in various reports, research papers and journal articles: at [52]-[60].
His Honour considered that as a manufacturer and provider of scaffolding to be used by other enterprises in the building industry, Acrow could not have been expected to be aware of every risk posed by every kind of dust, paint, solvent, glue or other building material used by its customers: at [61]. Reference was made to McPherson's Ltd v Eaton [2005] NSWCA 435; 65 NSWLR 187 at 203 (Ipp JA). His Honour accepted that, without being put on notice to inquire, Acrow had no cause to believe that small exposures to asbestos fibre may cause mesothelioma, as the discussions and published works in the period 1963 to 1969 had not moved beyond professionals engaged in public health and occupational hygiene: at [63].
However, his Honour distinguished Mr Dionysatos' claim on the basis that it did not concern the foreseeability of contracting an asbestos related disease from small quantities of asbestos fibre: at [64]. He found that the circumstances of Mr Dionysatos' exposure would have alerted any reasonable layman to the possibility that the quantity of dust in the air, whatever its constitution, may be hazardous to his health, particularly to his lungs: at [65]. His Honour accepted that statements in various journals and newspapers in 1956, as well as articles published in journals as far back as 1931 and in The Age newspaper in 1956, referring to the dangers to health of inhalation of large quantities of dust, reflected community awareness at the time Mr Dionysatos was employed by Acrow in 1963. He concluded that responsible officers of Acrow either knew, or ought to have known, in 1963 of the generic dangers of inhaling large quantities of dust: at [68].

[15]

Issue 1: Asserted factual errors

The issue raised by Acrow's challenge to the primary judge's factual findings has two parts. The first is whether there was no evidence that Mr Dionysatos was exposed to dust containing asbestos when working at the Opera House site. Acrow challenged three findings by the primary judge, namely: 1. the finding that asbestos was sprayed onto steel beams, relying upon the evidence of Mr Tsoukalas concerning spraying in 1968 and 1969; 2. the finding that the chances of Mr Dionysatos being exclusively exposed to gunite were "vanishingly small"; and 3. the finding that over a period of approximately 10 days in February 1966, Mr Dionysatos was continuously exposed to asbestos dust, as described in the evidence of Mr Clee.
The second is whether there was no evidence that Acrow knew of the exposure. The two findings which were challenged were: 1. the finding that Acrow had knowledge that asbestos was being used at the Opera House site, as described in the evidence of Mr Clee; and 2. the finding that Acrow knew anything about the dangers of asbestos at the time.
Counsel for Acrow identified as particulars of the asserted factual errors, paras (12)-(21) of its written submissions (tcpt CA 16/10/14 at 63, lines 34-49). Notably no particulars were given, nor were any oral submissions made, challenging his Honour's finding that Acrow knew, or ought to have known of the generic dangers of inhaling large quantities of dust. This complaint may be put aside.
On an appeal limited to error in point of law, the party not bearing the burden of proof may establish legal error by demonstrating that there was "no evidence" capable of supporting an ultimate fact: BHP Billiton Ltd v Dunning at [35] (Basten JA; Meagher JA agreeing); Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. Whether there was "no evidence" to support a factual finding is a question of law, not a question of fact: Kostas v HIH Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91].
It has been said that an appeal on a "no evidence" point in this type of case is difficult to succeed in: Amaca Pty Ltd v Booth at [104] (Heydon J). Unlike at the trial, the "no evidence" issue is a narrow one. Here Acrow had to identify what it submitted was an absence of evidence concerning Mr Dionysatos' exposure to asbestos dust and Acrow's knowledge that asbestos was being used at the Opera House site. The burden of this task was substantial in a case such as the present, where the volume of documentary material presented to this Court comprised over 6,500 pages.
The Estate relied upon Amaba Pty Ltd v Booth [2010] NSWCA 344 at [21]-[22] and [26] (Basten JA) for the proposition that as long as there is some basis in the evidence for the findings in question or for the inferences drawn by the Tribunal, and so long as those findings and inferences are logical, no challenge is permitted to them. Acrow did not submit to the contrary.
To the extent that findings or inferences of fact need to be supported by "logical grounds", this may be seen as a broader principle than the often cited statement of Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356, where the Chief Justice explained in the context of judicial review: Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.
In BHP Billiton Ltd v Dunning, Basten JA at [35]-[43] emphasised the need for a rational connection between particular evidence and a finding of fact in order to say that there was some evidence capable of supporting the finding: at [42]. This rational connection was described by his Honour as being the same as the relationship inherent in the concept of relevance in the laws of evidence: at [41].
His Honour continued at [43]: … Nevertheless, distinctions between fact and inference and between capacity to support a finding and the assessment in making the finding are not characterised by bright line boundaries.
His Honour gave as an example, evidence which was capable of supporting one inference, and other evidence capable of supporting a competing inference. His Honour considered that where competing inferences were based on quite different material, it is well within the scope of the tribunal of fact to determine which would be preferred: at [44]. This is of particular significance in the present case, where each party points to evidence of exposure to sprayed materials at the Opera House, one being sprayed limpet asbestos and bulldog cement, the other being sprayed concrete known as "gunite".
Macfarlan JA took the view in BHP Billiton Ltd v Dunning that no broader principle was in issue in that case, than the statement of Mason CJ in Australian Broadcasting Tribunal v Bond (set out above at [99]). Macfarlan JA approached the no evidence submission as requiring demonstration of an absence of evidence reasonably capable of justifying the relevant finding of fact: at [115]. Meagher JA agreed with the reasons given by both Macfarlan JA and Basten JA.
In the present case, Acrow did not submit that the Tribunal's challenged findings were based on inferences drawn as a result of illogical reasoning. Acrow's complaint was that there was either no evidence or insupportable inferences. It is unnecessary to explore in the present case whether there is any significant or practical difference in the approach to a "no evidence" submission based on the statements in BHP Billiton Ltd v Dunning.

[17]

(1) Corroboration by Mr Tsoukalas

Acrow's first complaint concerns the use which the primary judge made of the evidence of Mr Tsoukalas. This complaint only relates to one aspect of that evidence - the spraying of asbestos on steel beams. No complaint is made insofar as his Honour accepted the evidence of Mr Tsoukalas as corroborating the evidence of Mr Dionysatos about the use of power saws to cut thick sheets (which his Honour found contained asbestos), the generation of clouds of dust from that cutting process, or the manner in which scaffolders carried out their work, including Mr Dionysatos. Nor was any complaint made in relation to evidence of Mr Tsoukalas concerning the absence of precautions.
Mr Tsoukalas gave evidence with the assistance in part of an interpreter. In his evidence in chief, Mr Tsoukalas described the product which was sprayed onto the steel beams as "asbestos". Following an objection by counsel for Acrow, it was acknowledged by counsel for the Estate that this evidence was relied upon only as evidence of his belief. Mr Tsoukalas described the material which was sprayed on the steel beams as "amiantos", which he explained was the Greek word for asbestos.
Mr Tsoukalas gave a description of the process by which the product was sprayed onto the steel beams using a big gun. Mr Tsoukalas was not challenged in his evidence that the process created "a lot of dust like a cloud everywhere", or that it was necessary for workman to use rags for protection from the dust, because no masks were provided.
Acrow's complaint focused upon one passage in the cross-examination of Mr Tsoukalas. It is only necessary to set out two parts of that passage of cross-examination: Q: Are you saying that you've never heard of gunite? Did you know of a substance being sprayed at the Opera House called gunite. A: I, I saw this spray, but I don't know what the product is. Q: Would you have known whether the spray was vermiculite, gunite or anything else. A: No. Q: You didn't know what was in it. A: No. Of course we don't know. … Q: Did you know that, for example, there was concrete being sprayed at the Opera House. A: They sprayed the concrete, but I don't know why they spray. Q: Well, you saw concrete being sprayed, did you. A: Yes. Q: Is that the spraying you've described here today. A: Yes, yes, yes.
Acrow characterised this evidence as amounting to a concession by Mr Tsoukalas that the only product he saw sprayed at the Opera House was concrete. Two observations may be made. The first passage of cross-examination was not directed to the spraying of the steel beams. It established no more than that Mr Tsoukalas was unaware of the expressions "vermiculite" and "gunite". Not unreasonably he responded to the cross-examiner's questions that he did not know whether they had been sprayed at the Opera House. Significantly, the cross-examiner did not challenge his earlier evidence which described the material sprayed onto the steel beams as asbestos or "amiantos".
As to the second passage of cross-examination, the first question and answer reveal a degree of confusion and ambiguity, as counsel for the Estate submitted when addressing Acrow's reliance upon this evidence. Mr Tsoukalas readily agreed that he saw "concrete being sprayed", but read in context, it is unclear whether he was agreeing that concrete was the substance which was being applied, or itself the object of the spraying. A fair reading of the whole of his evidence would suggest the latter. In any event, the cross-examiner did not attempt to clarify this answer, nor rephrase the question in clearer terms. It was not squarely put to Mr Tsoukalas that the substance being applied in the process of spraying the steel beams was concrete, rather than asbestos or "amiantos".
In my view, the challenge to the primary judge's use of Mr Tsoukalas' evidence should be rejected.

[18]

(2) The use of gunite

Acrow next challenged the primary judge's finding that the chances of Mr Dionysatos being exclusively exposed to gunite over the period 1963-1969 were "vanishingly small". Acrow asserts this is factually wrong. It pointed to what it described as a "great deal" of evidence that gunite was "widely and continuously" used at the Opera House. Acrow asserts that this evidence is to be contrasted with the "scant" reference to asbestos in the archival documents.
It is common ground that gunite is sprayed concrete. It was also applied by a spraying process. The primary judge seems to have accepted that it did not contain asbestos. The primary judge considered the evidence concerning the use of gunite at [32]-[39] of his reasons. His Honour referred to the minutes of site conferences held on 29 July 1964, 29 September 1965 and 13 July 1966 (at [34]-[36]), where reference was made to guniting of the Stage Tower steelwork planned to start on the major hall on 31 July 1965 and the minor hall on 18 September 1965. The latter two minutes also refer respectively to Australian Asbestos tendering to supply and spray asbestos coatings, and that Nucrete had contracted to gunite trusses 1 and 2.
His Honour accepted that the evidence demonstrated that Nucrete sprayed gunite onto steelwork at the Opera House. He inferred from the documentary material that gunite was sprayed on part of the asbestos coated steel, where protection against impact or wear was desirable: at [38]. His Honour considered that there was no evidence as to the quantity of gunite sprayed and no material from which he could conclude that gunite was sprayed as extensively as asbestos in the works. Nor was there evidence that gunite was sprayed in the first two weeks of February 1966: at [39].
Acrow did not attempt to directly challenge these findings. Rather, in support of its contention that gunite was "widely and continuously" used at the Opera House, Acrow pointed to 11 separate references to "gunite" in the documentary material. None of the documentary references identified by Acrow support such a broad submission. Nor upon analysis are those documents inconsistent with his Honour's finding that gunite was not sprayed as extensively as asbestos in the Opera House works. To explain why this is so, it is necessary to briefly address these documents.

[19]

Documentary references to gunite

The first two references by Acrow are to the 29 July 1964 and 29 September 1965 site minutes, which have already been mentioned at [114] above. The third reference was to a site minute dated 25 January 1966 that makes reference to the need for truss 6 to be coated with limpet asbestos prior to guniting. The fourth reference was to a site minute dated 9 February 1966, which mentioned the contract to perform guniting, which has already been mentioned at 72 above.
Mention should be made at this point of two documents relating to guniting by Nucrete, to which Acrow did not draw the Court's attention. One was the minutes of a site conference, which seems to have been held on 23 February 1966. This records in relation to Nucrete, "[t]his subcontractor's progress has been hampered due to the delay in stage steel but apart from this their work is satisfactory". The other was the minutes of a site meeting held on 9 March 1966. This records that Mr Gore of Hornibrook reported that due to a delay in erection of the Stage Tower steelwork, Nucrete did not have sufficient work ahead of them at that time and a decision had been made to send a letter to Nucrete on 8 March 1966 asking Nucrete to suspend operations for a few weeks. A reply had apparently been received from Nucrete setting out their claim in regard to the suspension of works.
The significance of these two documents is that they provide the context for the subsequent documents to which Acrow did refer the Court.
The fifth of Acrow's references is to minutes of a site conference held on 13 July 1966. This records that Nucrete had made claims against Hornibrook for the cost of suspension of work and for interference.
The sixth reference is to minutes of a site conference held on 27 July 1966. This records that it is still undecided when Nucrete will be asked to return to the site. The seventh reference is to minutes of a site conference held on 5 October 1966. This records correspondence Hornibrook received from Nucrete dated 27 September 1966 in relation to points in dispute on Nucrete's claim. The eighth reference is to minutes of a site conference held on 2 November 1966. This records that Hornibrook had given instructions to Nucrete to remove their shed from the site, and had offered to buy back the gunite framework onsite.
The ninth and tenth references relate to minutes of a site conference held on 16 November 1966 which record that Hornibrook had requested Nucrete to remove their shed; Hall, Todd & Littlemore had written to Hornibrook regarding guniting of Stage Tower steelwork and requesting Hornibrook to delay further guniting until the matter had come under review; and, that it had been agreed that an early meeting would be called on Mr Gore's (of Hornibrook) return to discuss the Nucrete subcontract.
The eleventh reference relates to minutes of a site conference held on 13 December 1966 which records the ongoing dispute between Hornibrook and Nucrete and threats by Nucrete to proceed with arbitration.
The picture revealed by these documents is as follows. As the primary judge found, the documentary evidence established that Nucrete sprayed gunite onto steelwork at the Opera House. In the case of truss 6 in the major hall, it was necessary in early 1966 for the steelwork to be first coated with limpet asbestos before the guniting work was done, having regard to accessibility difficulties once the application of gunite was completed. However, by early February 1966, delay in the erection of the Stage Tower steelworks led to a decision by Hornibrook to suspend operations by Nucrete. This in turn led to a claim by Nucrete against Hornibrook and a dispute ensued at least for the remainder of 1966. It may be inferred from the minutes of the site conference on 27 July 1966 that Nucrete had not returned to the site as at that date, and it seems from the minutes of the site conference on 13 December 1966 that Nucrete's contract remained unfinished at that time. None of this material casts any doubt on the primary judge's finding that the chances of Mr Dionysatos being exclusively exposed to gunite over the period 1963-1969 were "vanishingly small".
One further matter should be mentioned in relation to the use of gunite. Counsel for Acrow contended before the Tribunal that Nucrete supplied its own scaffolding. The primary judge did not make any finding in this regard. No reference was made to this matter in this Court. Nonetheless, it is consistent with the eighth reference to gunite identified by Acrow (see [121] above), which records that Hornibrook offered to buy back from Nucrete the "gunite framework" onsite in November 1966. Of even greater significance, accepting that Nucrete used its own framework, Acrow did not point to any evidence that Mr Dionysatos was involved in the erection of Nucrete's own framework, which on Acrow's case would have exposed him to the spraying of gunite.
In my view, no error has been demonstrated in the way in which the primary judge dealt with the evidence of spraying of gunite. Acrow's contention that gunite was "widely and continuously" used at the Opera House is not established by the documentary references to which the Court was taken. Acrow's related contention that there was "scant" reference to asbestos in the documents is hyperbole. In addition to the documents identified in his Honour's reasons at [12]-[23], it is sufficient to observe that there were other relevant references to use of asbestos in minutes of site meetings including those held on 25 January 1966, 29 September 1965 (referred to in [114] above), 26 January 1966 and 15 February 1966; and also in the archival documents referred to at [54]-[55] above.
The challenge to the primary judge's finding relating to Mr Dionysatos' exposure to gunite must be rejected.

[20]

(3) Exposure in February 1966

Acrow also challenged the primary judge's finding that over a period of approximately 10 days in February 1966, Mr Dionysatos was continuously exposed to the concentration of asbestos dust which his Honour had found at [26], being visibly high concentrations of asbestos dust created by, relevantly, asbestos spraying. Acrow says that such a finding was not available and could only be guesswork.
Acrow contends that it is impossible now to work out exactly where any asbestos spraying occurred at the Opera House and that it is not known whether asbestos was sprayed over a small or large area, or sprayed in an internal or external area. Acrow says that there is no evidence that Mr Dionysatos was working anywhere near the area where the asbestos was sprayed in February 1966. Acrow points to the possibility that he might have been sick or have been on holidays at that time.
The starting point with this challenge is his Honour's earlier findings that during February 1966 Australian Asbestos sprayed eight trusses, and that it was reasonable to suppose that the formwork (the scaffolding) was assembled, and disassembled. Acrow contends that there is no evidence for these two findings.
The minutes of the site meeting held on 1 February 1966 refer to the application of limpet asbestos to truss 6, together with a finishing coat of bulldog cement. The minutes of a site meeting held on 15 February 1966 record that the application of the "hardened finish" to truss 6 in the major hall was almost complete. This may be taken to be a reference to "bulldog" cement, as these minutes noted that the bulldog coat took some time to harden. These minutes also record that truss 9 in the minor hall could not be sprayed with asbestos, because the slab had not been poured. Read together it was well open to his Honour to infer that work in February 1966, involving the spraying of limpet asbestos and the finishing coat of "bulldog" cement to truss 6, had been substantially completed by 15 February 1966.
However the part of his Honour's reasons which is problematic, is the finding that eight trusses were sprayed in 10 days in February 1966: at [27]. The documentary material only supports the inference that one truss - truss 6 in the major hall - was sprayed with asbestos in 10 days in February 1966. It seems that his Honour has conflated the subsequent reference, in what he incorrectly described as the minutes of a site meeting on 4 May 1966, to the contract for asbestos spraying on trusses "1 and 9" (at [16] and [22]), with the asbestos spraying work carried out in February 1966. His Honour also erred in that he overlooked the evidence of Mr Dionysatos that the scaffolding was disassembled about once a fortnight, when work was finished on a section. The evidence did not support the inference drawn by the primary judge that scaffolding was assembled and disassembled on eight separate occasions during a 10 day period in February 1966. Nonetheless I do not consider these errors to be material, nor do they undermine his Honour's finding that asbestos was sprayed over 10 consecutive days in February 1966. Relevantly, the inference to be drawn is that the spraying related to truss 6.
First, it may be inferred that the scaffolding required for the spraying of truss 6 was assembled and disassembled at the beginning and end of the period of approximately 10 days in February 1966 during which truss 6 was sprayed with asbestos. The extent of the exposure to workers involved in the assembly and disassembly of scaffolding during that period, may be inferred from the evidence of Mr Dionysatos, Mr Tsoukalas and Mr Clee who each described the "dust like a cloud" around where the spraying occurred and the "very dusty job" when the scaffolding was taken down and the planks moved around.
Secondly, the complaint by Acrow that there is no evidence that Mr Dionysatos was working anywhere near the area where the asbestos was sprayed in February 1966, ignores the evidence of the use of scaffolding for the Stage Tower steelwork in February 1966. The minutes of the site conference held on 9 February 1966 record under the heading "Work in progress", a report from Hornibrook that for the two weeks ending 8 February 1966: Scaffolding: Dismantling and depropping Access ways to shells and ridgebeams, stage tower and stressing, and duct investigation [Emphasis added.]
A similar report from Hornibrook with respect to scaffolding work for the two weeks ended 22 February 1966, is contained in the minutes for what seems to be the subsequent site conference held on 23 February 1966. Further reports to the same effect appear in subsequent minutes throughout 1966.
Although his Honour did not specifically refer to this material, it provides support for his Honour's inference that scaffolding was used to access the Stage Tower steelwork for the purpose of the spraying of asbestos, specifically for truss 6 in February 1966, and subsequently on other trusses in the Stage Tower steelwork. Acrow was the responsible contractor for the provision of such scaffolding. Mr Dionysatos was one of its employees engaged in such work. The submission by Acrow that he might have been either sick or on holidays in February 1966 is mere speculation. There is no reason to think that with respect to a large and busy site such as the Opera House, Mr Dionysatos would have been on holidays in February 1966. Nor is there any material to which attention has been drawn from which it might be inferred that he may have been sick, or otherwise absent from work in February 1966.
Having regard to the description of the scaffolding work given by Mr Dionysatos and Mr Tsoukalas, it was open to his Honour to infer that Mr Dionysatos was most likely involved in the assembly and disassembly of the scaffolding in February 1966 required to access truss 6 of the Stage Tower steelwork for the purpose of application of asbestos as recorded in the site minutes dated 1 and 15 February 1966 respectively.
In any event, the finding of the primary judge concerning exposure to asbestos was not limited to Mr Dionysatos' exposure in the 10 day period in February 1966. His Honour's finding (at [26]) was expressed more broadly as exposure to visibly high concentrations of asbestos dust created by asbestos spraying and also the cutting of asbestos-containing soundproofing board.
As to asbestos spraying generally, there was evidence from which the primary judge could infer that the contract with S A Butler Pty Ltd for the painting and fireproofing, through its subcontractor (Australian Asbestos), envisaged asbestos spraying on a total of nine trusses in the Stage Tower steelwork. Further, it may be inferred from the documentary material that asbestos spraying on steel beams occurred over the period at least February to May 1966.
As to the use and cutting of asbestos cement or fibro boards, Mr Dionysatos gave evidence that insulating board or sheet that was used for soundproofing was cut with a heavy duty saw nearby to where he was working. This resulted in a lot of dust in the air around him and on his clothes. Mr Tsoukalas also gave evidence concerning the creation of dust by the cutting of soundproofing board. His Honour inferred that the soundproofing board contained asbestos, having regard to the subsequent asbestos surveys. This finding is not challenged.
Despite there being no challenge to this finding, in oral argument counsel for Acrow made the somewhat surprising submission that he had never heard of "fibro" being used for acoustic purposes (tcpt CA 16/10/14 at 56, lines 23-25). Of course, submissions of counsel are not evidence, nor are assertions of counsel to be treated as evidence. Here the assertion was unsupported by any reference to the evidence. It was also contrary to the evidence counsel obtained in cross-examination of Mr Tsoukalas. It was put to the witness by counsel that he knew that fibro was being used for the purpose of acoustics, to which Mr Tsoukalas agreed. The contrary position taken by Acrow on appeal is untenable.
In my view, Acrow has failed to demonstrate that there is no evidence that Mr Dionysatos was exposed to asbestos dust whilst working at the Opera House site.

[21]

Acrow's knowledge of exposure

Acrow next challenged the primary judge's finding that Acrow had actual knowledge that asbestos was being used at the Opera House site. It is said that there was no evidence to support this finding, and it was not an inference which could be drawn from other evidence.
Acrow also pointed to what it described as a conflicting statement by the primary judge at [41], which it said seemed to suggest that Acrow may on the one hand, have had actual knowledge that asbestos was being used, and on the other hand, if Acrow did not know that asbestos spraying was taking place, it should have known and would have been in breach of its duty if it did not know. Acrow complained on appeal that the primary judge's approach created some difficulties in working out the case in negligence that Acrow had to meet.
In my view no such difficulty arises because Acrow's submissions involve a misreading of his Honour's reasons. The finding that Acrow had actual knowledge of asbestos spraying was specifically directed to the first two weeks of February 1966. His Honour found that Acrow's foremen or supervisors must have known that asbestos spraying was taking place at that time: at [41]. Such a finding was open, even accepting that only truss 6 was sprayed in this period.
The further finding that Acrow should have known of the exposure of its employees to asbestos spraying was directed to subsequent exposures after February 1966.
As to the finding of actual knowledge of the exposure to asbestos dust in February 1966, it was common ground that Acrow had a large number of employees on site (between 80 to 100) together with supervisors and foremen, working closely with other tradesmen on the construction of the Opera House. Acrow contended that the minutes of site meetings which mention asbestos were kept confidential from contractors like Acrow. But this is not to the point. The finding of the primary judge relating to Acrow's knowledge was not based on documentary material to which Acrow was not privy. Rather, his Honour's finding was based on the evidence of Mr Dionysatos, Mr Tsoukalas and Mr Clee, who described the process of asbestos spraying, including the manner in which bags of spray mix were cut open and fed into the hopper creating a very dusty process; and an atmosphere that was thick with asbestos dust and fibre during the spraying process.
It was not suggested that the evidence of the "dust like a cloud everywhere" created by the spraying process, would not have been apparent to Acrow's foremen and supervisors, nor could this evidence be dismissed, as Acrow sought to do, as being merely knowledge of exposure to dust-like conditions, resulting for example from the spraying of gunite. The evidence of dust-like conditions concerned laggers putting insulation on pipes, beams and concrete blocks, that is, fireproofing insulation, which involved the spraying of limpet asbestos.
The inference which was open to be drawn, and which the primary judge drew, was that Acrow's foremen and supervisors would have observed the bags of spray mix; the dust-like cloud created by the spraying process; the workmen who were using rags for protection from dust because there were no masks provided; and the use of air hoses to clean up dust after spraying had occurred.
Acrow's written submissions did not directly challenge his Honour's further finding that Acrow should have known of subsequent exposures of its employees to asbestos dust, that is, after February 1966. The contention that there is no evidence to support this finding should be rejected. The subsequent exposures of Acrow's employees to asbestos dust was not limited to the spraying of limpet asbestos. It extended to the sawing of compressed asbestos cement sheeting.
As to the former, the documentary material established that the spraying of asbestos continued in March 1966, including with respect to rectification work on truss 6. In addition, spraying of limpet asbestos on the main horizontal girders in Bents 1 and 2 in the Stage Tower of the major hall and Bents 1 and 9 in the minor hall was approved in May 1966. The inference is that this occurred in the months after May 1966.
As to the latter, reference has already been made to the evidence of the use and cutting of asbestos cement boards for soundproofing, and the evidence of Mr Dionysatos of the occasions when he worked nearby when the asbestos cement sheets were cut and he was exposed to a lot of dust in the air and on his clothes.
In my view, the challenges to the findings concerning Acrow's knowledge of exposures of its employees to asbestos dust have not been made out
It is unnecessary to address Acrow's written submissions dealing with the issues of duty of care and causation. As already noted, these were not pressed if the asserted factual errors were not made out: see [48] above.
One final matter should be mentioned. Acrow did not challenge the primary judge's findings on the statutory counts that Acrow breached regs 73(9) and 73(10) of the Scaffolding and Lifts Regulation. Other than the asserted factual errors relating to Mr Dionysatos' exposure to asbestos dust, no argument was advanced that his Honour's decision with respect to the statutory counts was erroneous in point of law. In these circumstances, it is unsurprising that Acrow did not pursue its other grounds of its cross-appeal directed to duty of care and causation, if the asserted factual errors were not made out.
Grounds 1 to 4 of the cross-appeal are not made out.

[24]

Dust Diseases Act

In 1967 the provisions of the Workers' Compensation (Dust Diseases) Amendment Act 1967 (NSW) were introduced into the Workers' Compensation (Silicosis) Act 1942 (NSW) (the Silicosis Act), which was renamed the Workers' Compensation (Dust Diseases) Act 1942 (NSW), which has been referred to earlier as the Dust Diseases Act.
The Dust Diseases Act established the Board (s 5) and a Workers Compensation (Dust Diseases) Fund (s 6). The Fund is principally employer funded through premiums paid to their insurers who are then required to make contributions to the Board, such contributions being determined by the WorkCover Authority. Section 7 provides for the appointment of a medical authority.
Section 8(1)(b) provides that dependants of a person who was a worker shall be "entitled to an award from the board, and to receive compensation at the prescribed rates of the Fund", if two preconditions are met. The first is that: … the medical authority certifies that a person died from a dust disease and that the person's death was reasonably attributable to the person's exposure to the inhalation of dust in an occupation to the nature of which the disease was due … .
The second precondition is that the Board finds either: (i) that such person was a worker during the whole of the time the person was engaged in such occupation, or (ii) that such person was a worker during only part of the time the person was engaged in such occupation, and, on the report of the medical authority, further finds that the person's death was reasonably attributable to the person's exposure to the inhalation of dust in such occupation during the time that the board has found that the person was a worker in such occupation … .
The dependants of a deceased worker who are eligible for compensation are identified in s 8(2B)(a) as a prescribed relative, or a surviving spouse and a child or children of the worker, who "was dependent for support, immediately before the worker's death". The expression "the worker" is a defined term in para (a), being a reference to the person who has died, and in respect of whom, relevantly, the two preconditions in s 8(1)(b) are met.
Section 8(9) defines a "prescribed relative" to include a surviving spouse of the worker.
The prescribed rates of compensation payable to a dependant are as provided by s 8(2B). Where the dependent person is a surviving spouse who was "wholly dependent for support on the worker", s 8(2B)(b) provides for a lump sum amount, and a weekly payment to continue until the marriage or death, whichever event first occurs, of the spouse.
Where the dependant is a surviving spouse who was "partially dependent on the worker for support", s 8(2B)(d) provides that: … the prescribed rate of compensation payable shall be such payments, not exceeding in any case the amount that would have been payable as compensation under the award had that person been wholly dependent on the worker for support, as may be determined by the board to be reasonable and proportionate to the injury to that person. [Emphasis added.]
The Explanatory Note to the Workers' Compensation (Dust Diseases) Amendment Bill 1967 (NSW) (1967 Amendment Bill), which inserted s 8(2)(b), states that the objects of the Bill include: (c) to prescribe, in place of the lump sum compensation now payable under the Act to a worker's widow in respect of his death, a smaller lump sum together with weekly compensation payable until her death or remarriage, and to provide for the payment of such weekly compensation to widows who obtained awards before the commencement of the amending legislation as well as those who obtain awards in future … .
The second reading speech for the 1967 Amendment Bill included the following: The lump-sum payment to be made is designed to meet the immediate expenses of the widow in connection with funeral arrangements, hire-purchase commitments, securing or retaining accommodation, sundry debts, and similar expenses: NSW Legislative Assembly, Parliamentary Debates (Hansard), 14 March 1967 at 4109.
The two main issues of construction raised by s 8(2B)(d) are first, the meaning to be given to the phrase "dependent on the worker for support". The Estate contended that "support" means financial support. Acrow contended that it may also include, as the primary judge found, the provision of support by way of services. The second issue is whether the concluding words "the injury to that person" refer to injury to the (deceased) worker, or the dependant. The Estate contended for the latter construction. Although initially equivocal, Acrow ultimately contended in oral argument that the reference to "the injury to that person", refers to the worker (tcpt CA 17/10/14 at 67, lines 24-27; and 67, line 50 - 68, line 5; cf 73, lines 42-49). These issues are relevant to the Estate's ground 3.

[25]

The earlier scheme under the Silicosis Act

The reference in the Explanatory Note to the lump sum compensation "now payable under the Act" is a reference to the compensation scheme provided by the Silicosis Act. That scheme was in similar terms to the scheme adopted in 1967, when the Silicosis Act was amended and re-named. There were however three relevant differences. The first was that the rates of compensation payable under the Silicosis Act to dependants of a deceased worker, were those prescribed by s 8 of the Principal Act, being the Workers' Compensation Act 1926 (NSW) (the 1926 Act), which were made applicable by s 8(2)(b) of the Silicosis Act.
The second difference was that the identification of the dependants of a deceased worker who were eligible for compensation under the Silicosis Act was also to be found in s 8 of the 1926 Act. Relevantly, the dependants who were eligible for compensation were any dependants wholly dependent for "support" upon the worker (s 8(1)), or any dependants in part so dependent upon the worker for "support" (s 8(2)). It is to be noted that the words "for support upon the worker" had been inserted in place of the words "upon his earnings" by the Workers' Compensation (Amendment) Act 1964 (NSW). These amendments dealt with the High Court's decision in Fisher v Hebburn Ltd [1960] HCA 80; 105 CLR 188. In Fisher v Hebburn Ltd, Kitto and Menzies JJ (McTiernan and Windeyer JJ agreeing) held that it could not be said that the worker's wife was, at the date of his incapacity, "dependent on his earnings" within the meaning of s 9(1)(b) of the 1926 Act, because at the relevant date the worker was retired and he had no earnings, his means having been confined to a pension.
The third difference was that under the Silicosis Act, the compensation payable to dependants partially dependent on a worker for support, picking up s 8(2) of the 1926 Act, was that which was "reasonable and proportionate to the injury to the said dependants". By contrast the new s 8(2B)(d) of the Dust Diseases Act provided that the compensation payable to dependants partially dependent on a worker for support, was that which was "reasonable and proportionate to the injury to that person".

[27]

Section 12D Tribunal Act

Section 12D of the Tribunal Act relates to deductions made when determining damages for non-economic loss in proceedings before the Tribunal. It provides: 12D Damages for non-economic loss not to be reduced by certain compensation payments (1) This section applies to proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) for damages in relation to dust-related conditions. (2) In determining damages for non-economic loss in any such proceedings, no deduction is to be made for any amount of compensation already paid or payable, or payable in the future, under the Workers' Compensation (Dust Diseases) Act 1942. (3) In this section: damages for non-economic loss means damages or compensation for the following: (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement, (e) the need for services of a domestic nature or services relating to nursing and attendance which have been or are to be provided to a person by another person, and for which the first person has not paid and is not liable to pay any fee or charge.
This provision was inserted into the Tribunal Act by the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (NSW). The Explanatory Note states that the new section "deals with the decision in James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729" (James Hardie v Newton).
In James Hardie v Newton this Court held that collateral benefits in the form of a weekly pension that a plaintiff worker had received and would continue to receive under the Dust Diseases Act for disability from a dust disease was deductible from common law damages in a situation where the worker made no claim for loss of past earnings or future earning capacity.
The construction issue raised by appeal ground 4 is whether the definition of non-economic loss for the purposes of s 12D extends to s 15B damages, with the consequence that s 12D(2) requires that there be no deduction from the Estate's s 15B damages for any compensation paid or payable to Mrs Dionysatos under the Dust Diseases Act.

[28]

Section 15B damages

Turning to s 15B. This provision, like s 15A, is one of the limited exceptions to the general exclusion of the application of provisions of the Civil Liability Act to proceedings before the Tribunal for damages in relation to dust-related conditions: Civil Liability Act, s 3B(1)(b).
Relevantly, s 15B(2) of the Civil Liability Act provides: When damages may be awarded Damages may be awarded to a claimant for any loss of a 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.
The definition of "dependants" in relation to a claimant includes the wife of the claimant: s 15B(1). The phrase "gratuitous domestic services" is defined to mean "services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid": s 15B(1).
Subsection (4), headed "Determination of amount of damages", provides: The amount of damages that may be awarded for any loss of the claimant's capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15(5) regardless of the number of hours involved.
Subsections (6)-(9) of s 15B prevent an award of damages in certain circumstances. One circumstance in which a claimant, or their estate, may not be awarded such damages for any loss of the claimant's capacity to provide gratuitous domestic services to any dependant of the claimant is provided in s 15B(6): if the dependant has previously recovered damages in respect of that loss of capacity. [Emphasis added.]
Section 15B was inserted by the Civil Liability Amendment Act 2006 (NSW). The Explanatory Note states that the new section is "to enable a court in certain circumstances to award damages of the kind recognised by the Court of Appeal in Sullivan v Gordon".
In CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1 at [68], [113] and [122], the High Court held (overruling Sullivan v Gordon [1999] NSWCA 338; 47 NSWLR 319) that a person who, by reason of personal injury, is unable to provide gratuitous personal or domestic services to another person, cannot recover as damages an amount calculated by reference to the commercial value of those services. The High Court however noted the plaintiff's pre-injury capacity to assist others could be regarded as an amenity, and a plaintiff could recover compensation for loss or impairment of that amenity, as part of an award in respect of general damages: at [71], [114].
Section 15B may be seen as having reintroduced a modified form of Sullivan v Gordon damages (described as damages for loss of capacity to provide domestic services): D Villa, Annotated Civil Liability Act 2002 (NSW), (2nd ed 2013, Lawbook Co) at [2.15B.010].
Two construction issues are raised by s 15B.
The first concerns the operation of the exclusion in subs (6). Acrow relies on this exclusion in its notice of contention as justification for the primary judge's decision to deduct the compensation paid and payable to Mrs Dionysatos under the Dust Diseases Act from the Estate's s 15B damages.
The second issue is whether the primary judge adopted an incorrect approach to the assessment of the loss of Mr Dionysatos' capacity to provide gratuitous domestic services to his wife at the time that Acrow's liability arose, that is, at the time of the injury suffered by Mr Dionysatos. This issue is raised by the Estate's grounds 1 and 2.

[31]

The primary judge's reasons

The primary judge first considered the nature of the statutory benefits awarded to Mrs Dionysatos under s 8(2B)(d) of the Dust Diseases Act (set out at [168] above). His Honour noted that this provision mirrored the language of s 4 of the Compensation to Relatives Act 1897 (NSW), in that the provisions referred to an award of compensation or damages "reasonable and proportionate to the injury to that person" (s 8(2B)(d)) and "proportioned to the injury" (s 4): at [117]. His Honour observed that Mrs Dionysatos was not financially dependent upon her husband for support at the time he fell ill: at [119]. He referred to the observation of Stein JA in James Hardie v Newton at 736E concerning an injured worker, that "the weekly pension is also payable to people … who are no longer working and have not suffered any economic loss in the nature of past earnings or future earning capacity." His Honour found that the phrase "partially dependent on the worker for support" in s 8(2B)(d) must include not only financial support, but support by way of the provision of services: at [120].
The primary judge stated, without identifying by reference to the evidence, that the moneys paid to Mrs Dionysatos by the Board would "appear" to be in recognition of, and as a direct consequence of, the loss of the capacity of Mr Dionysatos to provide services to her: at [121]. His Honour then referred to the rule against double recovery, and noted that a plaintiff cannot recover more than he or she has lost: at [123]. Reference was made to Haines v Bendall [1991] HCA 15; 172 CLR 60 at 63; Manser v Spry [1994] HCA 50; 181 CLR 428; Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1; and James Hardie v Newton.
His Honour acknowledged that the present case was "complicated" because Mrs Dionysatos was the direct recipient of the compensation benefit from the Board and not the Estate: at [128]. His Honour recognised the need to identify a "benefit", otherwise compensable, that has accrued to the Estate of Mr Dionysatos that would not have accrued but for his injuries. His Honour concluded as follows: 130. Mrs Dionysatos, the beneficiary of Mr Dionysatos' capacity to provide services, has been supported after his loss of that capacity by payments of the Dust Diseases Board made in respect of that same loss. To that extent, the need of Mrs Dionysatos for services has been satisfied. [Emphasis added.] 131. It is appropriate to deduct from the s15B damages payments made to Mrs Dionysatos by the Dust Diseases Board.
His Honour added: 132. I am fortified in that conclusion by the circumstance that the executor is the plaintiff both in the Survival of Actions Claim and the Lord Campbell's Act claim. The payments by the Dust Diseases Board would certainly be deducted from an award of damages in favour of Mrs Dionysatos made pursuant to Lord Campbell's Act, because damages in such an action are calculated on the balance of pecuniary gains and losses consequent upon the death (Public Trustee v Zoanetti (1945) 70 CLR 266; Nguyen v Nguyen (1990) 169 CLR 245; DeSales v Ingrilli (2002) 212 CLR 338). 133. Further, in the Lord Campbell's Act claim the plaintiff bears the onus of proving the extent to which Mrs Dionysatos will benefit from her share of an estate swollen by the proceeds of the verdict in the estate claim (BI (Contracting) Pty Ltd v Strikwerda [2005] 3 DDCR 149). 134. In this circumstance, the statement by Winneke P in Boncristiano v Lohman is pertinent. The dependency of Mrs Dionysatos upon the capacity of her husband to provide services to her is the substance of each claim. The legislature in enacting s15B addressed the same mischief as that addressed by Lord Campbell's Act, that is, the deprivation of support to a family member in consequence of the actions of a tortfeasor. It cannot have intended that the measure of damages should depend upon the procedural device used by the executor in electing to pursue the claim pursuant to s2 of the Law Reform (Miscellaneous Provisions) Act 1944 rather than pursuant to s3 of the Compensation to Relatives Act 1897.

[32]

Consideration

The starting point is to recognise the fundamental object of an award of damages for tort is to provide compensation in a sum which will put that party in the same position he or she would have been in but for the tort: Haines v Bendall at 63; Downes v Amaca Pty Ltd at [80]. Since compensation is the cardinal concept, a plaintiff cannot recover more than he or she has lost: Haines v Bendall at 63; James Hardie v Newton at 735; Clark v Macourt [2013] HCA 56; 253 CLR 1 at [59] (Gageler J).
In SAS Trustee Corporation v Budd [2005] NSWCA 366 (Budd) Mason P at [33] explained the rule against double compensation as follows: The rule against double compensation may be invoked by one or more defendants. If it can be shown that the plaintiff/claimant has already received recompense in any form in respect of the loss for which compensation is claimed against the defendant invoking the rule, then the plaintiff's loss requiring compensation from that defendant is regarded as discharged pro tanto. To award compensation with respect to that loss against that defendant would be to permit double recovery by the plaintiff in respect of a loss no longer calling to be compensated.
The issue of whether collateral benefits are deductible from common law damages has been the subject of much authority yet, as the authorities demonstrate, difficulties continue to arise. The general principles are well established in the High Court authorities: National Insurance Co of New Zealand v Espagne [1961] HCA 15; 105 CLR 569; Manser v Spry; Redding v Lee [1983] HCA 16; 151 CLR 117; Harris v Commercial Minerals Ltd. This Court has also addressed the issue, specifically in relation to claims for damages in the Tribunal: see CSR Ltd v D'Arcy (1996) 40 NSWLR 721; James Hardie v Newton; and Downes v Amaca Pty Ltd.
The task of the Court in such cases is to discover the legislative intention underlying the benefit: Manser v Spry at 436; James Hardie v Newton at 735. Three possible indicia of such intention have been identified in the authorities: (a) the financial source of the benefit; (b) a provision which requires repayment of the benefit out of damages; and (c) the nature of the benefit.
In the case of an injured worker, the High Court held in Harris v Commercial Minerals Ltd (at 17-18) that both the source of the benefits and the nature of the benefits indicated that the benefits awarded to the injured worker under the Dust Diseases Act should be deducted from awards of damages in respect of injuries giving rise to such benefits (to the worker).
In the present case, the difficulty with his Honour's reasoning is that the rule against double compensation simply had no application to the Estate's claim, because, as his Honour correctly recognised, the Estate was not the recipient of the statutory benefit received by Mrs Dionysatos. The authorities referred to by his Honour are clearly distinguishable. Those cases concern whether a statutory benefit received by a plaintiff should be deducted from the plaintiff's own claim for common law damages. Thus, the question in those cases was whether the statutory benefit possessed the "distinguishing characteristic" that it is to be enjoyed "independently and cumulatively" upon the plaintiff's right to damages: Manser v Spry at 436.
Here, it could not be said that the Estate has enjoyed the statutory benefits received by Mrs Dionysatos in any sense, in addition to the Estate's right to s 15B damages. The payments to Mrs Dionysatos under the Dust Diseases Act cannot be treated as a substitute or partial substitute for compensatory damages for the injury to Mr Dionysatos. Accordingly, enjoyment of the payments received by Mrs Dionysatos under the Dust Diseases Act cannot be attributed to the enjoyment of damages by the Estate for the injury to Mr Dionysatos: cf Haines v Bendall (at 70-71).
The error in his Honour's reasoning is that having correctly identified that the rule against double compensation required identification of a benefit, otherwise compensable, that had been received by the Estate that would not have been received but for Mr Dionysatos' injuries, his Honour did not proceed to answer that question. His Honour erred by disregarding the fact that the statutory benefits were awarded to Mrs Dionysatos, not the Estate.

[33]

Not the "same loss"

This error was carried over in his Honour's conclusion (at [130]) that Mrs Dionysatos' personal loss, the subject of her dependency claim under the Dust Diseases Act, is that "same loss" as suffered by Mr Dionysatos, and on his death, by his Estate. The losses are different. To explain why, it is necessary to identify and compare the loss the subject of each claim. What Mrs Dionysatos lost was the support of Mr Dionysatos upon whom she was partially dependent at the time of his death. The compensation received by Mrs Dionysatos from the Board was in respect of her partial dependency claim, measured as at the date of her husband's death.
Turning to the first of the two issues of construction in relation to s 8(2B)(d) (identified at [171] above), the phrase "partially dependent on the worker for support" is not limited to financial support in the sense of dependency on the earnings of the worker. So much is apparent from the 1964 amendment to the 1926 Act, which dealt with the High Court's decision in Fisher v Hebburn Ltd by expanding the concept of dependency from that of dependent on the worker's earnings, to dependency in the wider sense of "dependent for support" on the worker (see [173] above).
The Dust Diseases Act does not define the word "support", but read in context and having regard to the evident purpose of the wider reference to "support", there is no reason why the word "support" should not be given its ordinary meaning in the phrases "dependent for support" in s 8(2B)(b) and "dependent on the worker for support" in s 8(2B)(d). The ordinary meaning of the word "support", relevantly, includes: 5. to maintain (a person, family, establishment, institution etc) by supplying with things necessary to existence; provide for: Macquarie Dictionary (Online).
The phrases "dependent for support on the worker" in s 8(2B)(b) and "dependent on the worker for support" in s 8(2B)(d) may be taken to connote a relationship of support between the dependant and the worker, in the sense that the dependant is either wholly or partially reliant on the worker to maintain, or provide for the dependant. Section 8(2B) does not expressly limit "support" to "financial support", and it can be accepted that the notion of "support" may include the provision of services to maintain or provide for the dependant. However, the awards under s 8(2B)(b) and (d) are not made by reference to any particular expenses which would be incurred by the worker in maintaining or providing for the dependant. Nor are the awards under s 8(2B)(b) and (d) commensurate with the "value" of the loss of support. An award is a defined benefit (or a proportion thereof) given by the Board upon demonstration that the dependant satisfies the criterion of having been either wholly or partially dependent for support on the worker. Consistently with this, the second reading speech for the 1967 Amendment Bill (set out at [169] above) explained that the lump sum payment was designed to meet immediate expenses in connection with funeral arrangements, financial commitments, securing or retaining accommodation, sundry debts and similar expenses. Similarly, the weekly pension may be taken to provide for ongoing financial assistance until the dependent widow dies or remarries.
Next, the reference to the "injury to that person" in the concluding words of s 8(2B)(d), should be taken as a reference to the injury to the dependant making the claim, not the injury to (that is, the death of) the worker. To read those words as referring to the injury to the deceased worker (as Acrow contended), would be inconsistent with the legislative history of the predecessor provision in the 1926 Act (referred to at [174] above). The drafting of s 8(2B)(d) is also consistent with the history. Importantly, the expression "the worker" is a defined term in s 8(2B)(a). Where para (d) refers to "person" it is a reference to the dependant. Where para (d) refers to "the worker" it is a reference to the defined term. There is no basis for concluding that the drafter departed from the definition set out in para (a), in para (d), when referring in the concluding words to "that person". It is not the deceased worker's injury which is the subject of compensation. The focus of the dependency claim under s 8(2B) is on the injury to the dependant for the loss of the worker's support measured as at the date of the worker's death.
The primary judge seems to have considered (at [121]), without making an express finding, that the compensation awarded to Mrs Dionysatos by the Board was in recognition, and as a direct consequence, of the loss of the capacity of Mr Dionysatos to provide domestic care and services. Three observations should be made.
First, it may be doubted that his Honour made a finding to this effect, as his Honour's statement was qualified by the words "would appear".
Secondly, and of greater significance, the evidence before the Tribunal did not establish that the basis upon which the Board had made an award in favour of Mrs Dionysatos was in respect of the provision of services by Mr Dionysatos, let alone represent compensation for the loss of domestic care and services provided to Mrs Dionysatos by her deceased husband. The Board's approved form of application for compensation did not direct attention to this topic: reg 8, Workers' Compensation (Dust Diseases) Regulation 2008 (NSW). The focus of the information requested by the Board was on Mrs Dionysatos' own financial position. The award made by the Board on 15 November 2012 contained findings as to Mrs Dionysatos' partial dependency on the deceased, but did not give reasons for that finding by the Board.
Thirdly, his Honour seems to have overlooked the nature of the award made by the Board to a partially dependent widow, such as Mrs Dionysatos, under s 8(2B)(d). As already indicated, the award is a proportion of the defined benefits which may be awarded under s 8(2B)(b). It cannot be concluded that the award to Mrs Dionysatos (or any part thereof) represented the "same loss" as suffered by Mr Dionysatos' inability, as a result of his injury, to provide care and services to his wife.
By contrast, what s 15B aims to compensate is the injured claimant for loss of the claimant's capacity to provide gratuitous domestic services: Amaca Pty Ltd v Novek [2009] NSWCA 50; 9 DDCR 199 at [92] (DDCR). On the evidence, Mr Dionysatos' injury was suffered in October 2011. The loss for which s 15B provides damages, differs from the dependency claim of Mrs Dionysatos for which the Board provides compensation. Mrs Dionysatos and Mr Dionysatos each had different rights to be enjoyed independently of the other's rights. The primary judge erred in conflating the s 15B damages and the Board's award, as reflecting the "same loss" suffered by Mr Dionysatos.

[35]

The Estate had no evidentiary onus

Next, insofar as the primary judge considered (at [133]) that the Estate had the onus of proving that it would not recover more than it had lost because of the statutory benefits obtained by Mrs Dionysatos, his Honour misapplied the principle in BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288; 3 DDCR 149, which was concerned with a different circumstance.
BI (Contracting) Pty Ltd v Strikwerda is authority that a widow claiming in a dependant's action, under what was historically known as Lord Campbell's Act, has the ultimate persuasive onus of establishing the extent of any benefit received by the widow under her husband's estate, which has been swollen by the proceeds of a successful claim by the estate against the same tortfeasors. This is because, as already indicated, in such a case, damages for the widow's injury are calculated on a balance of pecuniary gains and losses consequent upon the death of her husband. This principle has no application in the present case.
Acrow also relied in this Court upon Budd for its contention that the Estate had an evidentiary onus. Acrow referred to the following statement of Mason P (Handley and McColl JJA agreeing) at [49]-[50]: 49. There is a line of cases dealing with the rule against double compensation, holding that where the person invoking the rule (usually the defendant) establishes that money was paid to the other party in circumstances capable of attracting the rule (eg with respect to a concurrent claim), it is for the recipient to show that the money was not received by way of compensation for the loss (Townsend v Stone Toms & Partners (1984) 27 BLR 26 at 41, 51, 56 (Eng CA), Boncristiano at 89-90). 50. I incline to the view that these cases involve an evidentiary onus being cast upon the party having access to the relevant information rather than a free-standing principle forming part of the rule against double compensation. Be that as it may, the respondent was party to the proceedings before Judge Hosking, unlike the present appellant. The respondent called no evidence (and did not explain his inability to do so) with reference to identifying the issues raised for determination before Judge Hosking and/or addressed in his reasons for judgment.
Again, this contention conflated the separate identities of the Estate and Mrs Dionysatos. It also ignored the very different factual position and statutory regime considered in Budd.
In Budd a police officer injured in the course of duty had applied for and received compensation under the Victims Compensation Act 1987 (NSW) and later applied for a gratuity under s 12D of the Police Regulation (Superannuation) Act 1906 (NSW) (PRS Act). Section 12E(2) of the PRS Act required that any amount paid pursuant to the Victims Compensation Act by way of compensation for injury to the person shall be deducted from any gratuity subsequently payable to the person under, relevantly, s 12D, in respect of the injury. This Court noted that s 12E(2) seeks to prevent the injustice of double compensation: at [32].
Budd involved two statutory benefits received by the same person who had claimed a gratuity under the PRS Act, which contained a specific provision directed to the rule against double compensation. This Court held that since the trustee had established that money was paid to the police officer under the Victims Compensation Act in circumstances capable of attracting the rule against double compensation, it was for the recipient to show that the money was not received by way of compensation for the loss in respect of which he claimed the gratuity.
There is no analogy between Budd and the present case involving the Estate's separate claim under s 15B and the statutory benefits awarded to Mrs Dionysatos. The assertion by Acrow that the Estate had a relevant evidentiary onus with respect to its erroneous "same loss" contention should be rejected.

[39]

Section 12D only operates where the rule against double recovery is engaged

Section 12D requires, reversing the position in James Hardie v Newton, that statutory benefits awarded under the Dust Diseases Act are not to be deducted from the damages awarded by the Tribunal for the claimant's non-economic loss, as defined. The purpose of the provision is to provide a limited modification of the rule against double compensation with respect to a claimant's damages in the Tribunal for non-economic loss. As already indicated, the rule against double compensation is invoked when a claimant's loss may be regarded as discharged pro tanto by another receipt by the claimant: Budd at [33] (Mason P).
It has been said that s 12D did not overrule the general rule established by the High Court in Harris v Commercial Minerals Ltd that future pension entitlements should be deducted from "awards of damages in respect of injuries giving rise to those benefits" so as to be "deductible from any common law damages (at 18), but only that part of James Hardie v Newton that held that future benefits could be deducted from general damages as defined: Commercial Minerals Ltd v Harris [1999] NSWCA 94 at [22].
The second reading speech of Mr K Yeadon, the Minister introducing the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Bill 1998 (NSW) (1998 Amendment Bill), relied upon by Acrow, included the following: An associated proposal involves the relationship between a worker's rights to workers compensation and to damages at common law for the same dust disease. To avoid double compensation, the courts have developed principles that require some offsetting between those two categories of payment. However, in the December 1997 decision of James Hardie v Newton, the Court of Appeal extended the previously accepted offsetting principles. In that case, although the worker's common law claim related only to damages for pain and suffering, it was held that the amount of weekly compensation already received by the worker must nevertheless be deducted from those damages. In the context of dust diseases, the Government considers that that approach, which may severely reduce a worker's net entitlements, is inappropriate. Weekly payments under the Workers Compensation (Dust Diseases) Act and damages for pain and suffering are not sufficiently comparable to warrant offsetting: see NSW Legislative Assembly, Parliamentary Debates (Hansard), 29 October 1998 at 9436. [Emphasis added.]
The second reading speech in the Legislative Council by the Attorney-General, Mr J W Shaw, the Minister with carriage for the 1998 Amendment Bill is, relevantly, to similar effect: see NSW Legislative Council, Parliamentary Debates (Hansard), 17 November 1998 at 9973-9974.
Section 12D may be seen to reflect a legislative intent that a claimant's damages for non-economic loss, are not to be regarded as discharged pro tanto by the claimant's receipt of statutory benefits. Here the question which arises is whether the scope of deductions prohibited by s 12D(2) is limited to the claimant's statutory benefits.
The prohibition in s 12D(2) is expressed in general terms, referring to "any amount of compensation" paid or payable by the Board. The provision is beneficial to the claimant worker, by removing some deductions from the claimant's damages for non-economic loss, which might otherwise be made under the general law. Importantly, the prohibition in s 12D is not limited to the deduction of a particular category of statutory benefits, in circumstances where the Dust Diseases Act expressly provides for compensation to be paid or payable to dependants, where the worker has died.
Section 12D assumes that, under the general law, amounts of compensation may be deducted from awards of damages. However, s 12D does not make any assumption about the scope of deductions required under the general law where a dependant of a deceased worker has been awarded statutory benefits. Accepting this to be the correct analysis, then s 12D should be approached as follows: if such deductions are required under the general law, they are prohibited in assessing damages for non-economic loss for the particular heads of damage set out in s 12D(3): Pacific Power v Royal [1999] NSWCA 350; 47 NSWLR 366 at [4] (Sheller JA); if such deductions are not required under the general law, s 12D has no operation.
For the reasons already given with respect to ground 3, the deduction of Mrs Dionysatos' statutory benefits from the Estate's s 15B damages is not required under the general law, because her receipt of statutory benefits does not give rise to any double recovery by the Estate. Accordingly, on the approach outlined above, it should be concluded that s 12D has no operation in the present case.

[40]

Alternative analysis: the scope of the definition in s 12D(3)(e)

Against the possibility that, contrary to the above analysis, the general law rule against double compensation is engaged in the present case, it is necessary to consider whether s 12D would operate to prohibit the deduction of Mrs Dionysatos' statutory benefits, as the Estate contended in the alternative to ground 3. Acceptance of this contention depends upon whether the particular head of damage set out in s 12D(3)(e) of the definition of "damages for non-economic loss" covers both Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 type claims and s 15B claims.
As already mentioned, the primary judge's conclusion that s 12D had no application was based on his characterisation of the Estate's claim for s 15B damages as a claim for "paid services", not a claim for gratuitous domestic services to which s 12D(3)(e) is concerned. This characterisation was consistent with his Honour's earlier description of the Estate's claim as being a claim for the "commercial cost" of care for Mrs Dionysatos: at [90]. This description seems to have been based on the Estate's pleading which asserted a claim for the "commercial cost of replacing his [Mr Dionysatos'] care for his wife in the past and ongoing in the future in accordance with s 15B of the Civil Liability Act".
Despite the erroneous reference in the Estate's pleading to a claim under s 15B being for the "commercial cost" of care, the Estate's written and oral closing submissions before the Tribunal did not leave any room for doubt that the claim under s 15B was for Mr Dionysatos' incapacity to provide gratuitous domestic services to his wife, with damages assessed at the maximum rate set by s 15(5), as made applicable by s 15B(4), which at that time was $26.36 per hour: Estate's closing submissions at paras (15.42-15.44) and oral submissions (tcpt 12/7/13 at 148, lines 15-24).
It was not argued before his Honour that the applicable hourly rate of $26.36 per hour was unreasonable. This was the rate applied by the primary judge in assessing s 15B damages. Implicit in that award was an acceptance by his Honour that Mr Dionysatos had provided domestic services to his wife prior to his injury gratuitously. Acrow did not contend otherwise on appeal. In my view, the primary judge erred in characterising the Estate's claim under s 15B as a claim for "commercial care" and therefore outside of s 12D(3)(e) for that reason. However the matter does not rest there.
Acrow sought to uphold his Honour's decision that s 12D had no application in the present case, on a different ground to that relied upon by his Honour. Acrow contended that s 15B damages do not answer the description of damages for non-economic loss, as defined in s 12D(3)(e). The Estate did not complain that no notice of contention had been filed by Acrow raising this point.
Acrow's contention focused on the requirement in s 12D(3)(e) that the damages for non-economic loss must, relevantly, answer the description of damages for "the need for services" of the designated character, being services which have been or are to be provided to "a person by another person" and for which the "first person" is not liable to pay any fee or charge.
Acrow contended that the "first person" referred to in subs (3)(e) who has "the need" for the domestic services, can only be the claimant or plaintiff before the Tribunal. Acrow described this as the paradigm Griffiths v Kerkemeyer claim. That type of claim is now reflected in s 15A of the Civil Liability Act which applies in proceedings before the Tribunal. Acrow emphasised the difference between the reference in subs (3)(e) to damages for "the need" of "a person" for domestic services, and s 15B damages for the claimant's "inability" or "loss of capacity" to provide domestic services to "another person", relevantly their dependants. It was submitted that the claimant's inability to provide domestic services to others, did not answer the description of "the need" for domestic services in the definition in s 12D(3)(e).
The Estate responded by pointing to the use of the indefinite article in connection to the reference to "a person" in s 12(3)(e) and the absence of any reference in the definition to the claimant or plaintiff in the proceedings before the Tribunal. The Estate contended that the language of definition was expressed at a level of generality that was capable of covering both Griffiths v Kerkemeyer type claims and s 15B claims. It was submitted that if the reference to "person" was only intended to be a reference to the claimant or plaintiff in the proceedings before the Tribunal, then narrower language could have been used, and it was significant that the legislature had chosen more general language.
Accepting that the reference to "a person" in subs (3)(e) cannot be read in isolation from the earlier reference to "the need" for domestic services, there is much force in the Estate's submissions.
In support of its narrower construction, Acrow made two submissions. The first was that s 12D(3)(e) cannot have been intended to apply to s 15B damages because it predated s 15B. Acrow emphasised that when s 12D was introduced in 1998, the common law equivalent of s 15B damages had not yet been recognised by this Court in Sullivan v Gordon. Although chronologically accurate, as will appear, this submission must be approached with some caution. The second submission was that s 12D(3)(e) does not reflect the language of s 15B.
Acrow also referred to the second reading speech for the 1998 Amendment Bill which included the extract set out at [238] above. That second reading speech confirms the legislative intention that s 12D was inserted to modify the rule against double compensation with respect to a claimant's damages for non-economic loss. Otherwise, this second reading speech does not shed much light on the meaning of subs (3)(e).
The history of the state of the law with respect to Sullivan v Gordon damages was traced by the High Court in CSR Ltd v Eddy at [5]-[11]. It may be accepted that when s 12D was introduced in 1998, New South Wales did not permit recovery of damages reflecting the impaired capacity of plaintiffs to provide domestic services to their family or friends: Burnicle v Cutelli [1982] 2 NSWLR 26 (Reynolds and Mahoney JJ; Glass JA dissenting). However, as the High Court observed in CSR Ltd v Eddy at [9], the Queensland Court of Appeal had accepted such a claim in Sturch v Willmott [1997] 2 Qd R 310, as had the Full Court of the Federal Court of Australia sitting on appeal from the Supreme Court of the Australian Capital Territory: Cummings v Canberra Theatre Trust (Federal Court (Full Court), 18 June 1980, unrep), which had been followed in Hodges v Frost (1984) 53 ALR 373 at 384-385.
The submissions by Acrow raise for consideration, the principle of statutory interpretation that the text of a statute is ordinarily to be read as speaking continuously in the present: Commissioner of Police (NSW) v Eaton [2013] HCA 2; 252 CLR 1 at [97] (Gageler J). See also Stingel v Clark [2006] HCA 37; 226 CLR 442 at [26]-[27]; The Queen v Gee [2003] HCA 12; 212 CLR 230 at [7] (Gleeson CJ); Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 at [148] (Spigelman CJ); Hore v Albury Radio Taxis Co-operative Society Limited [2002] NSWSC 1130; 56 NSWLR 210 at [40] (Campbell J).
D C Pearce and R S Geddes, Statutory Interpretation in Australia (8th ed 2014, LexisNexis Butterworths) at 156 [4.9] explain that "[l]egislation is usually deliberately drafted with the intention that the text is to be regarded as ambulatory, thereby embracing future changes in the subject matter". Later at 159 [4.11] the authors state that it must "be certain that the words in question are being used in a generic sense before the 'always speaking' approach can be applied".
In Deputy Commissioner of Taxation v Clark, Spigelman CJ explained the "always speaking" approach to statutory construction as follows (at [142]): Where, as here, Parliament has chosen a formulation which is of indeterminate scope and of a high level of generality, a court should interpret the provision on the basis that the intention of the original enactment was that the particular application of the provision may vary over time. The context, however, remains one of the law of corporations. In particular it will be changes in the principles establishing duties of directors, specifically duties arising in a context of insolvent trading, that determine whether there has been any relevant change in the context which justifies a conclusion that conduct which may not have constituted a "good reason" in 1992, should now be regarded as a "good reason".
This approach has been followed and applied in Preston v Commissioner for Fair Trading [2011] NSWCA 40; 80 NSWLR 359 at [34] (Campbell JA; Tobias and Young JJA agreeing); and in Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50 at [396] (Besanko J; Allsop CJ and Middleton J agreeing).
However, as Campbell J explained in Hore v Albury Radio Taxis Co-operative Society Limited at [43], some caution must be applied in the exercise of this principle. This is because there remains "a question of construction which needs to be decided, about whether a particular expression ought to be construed, in the context of the particular legislation in which it occurs, as actually extending to some new state of affairs to which it might arguably extend".
In applying these principles to the present case, it needs to be recalled that the function of a definition is not to enact substantive law. It is to provide aid in construing the statute: Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [103] (McHugh J). Thus, as his Honour explained (at [103]), the proper course is to read the words of the definition into the substantive enactment and then construe the substantive enactment in its context and having regard to its purpose and the mischief that it was designed to overcome.
When the definition in subs (3)(e) is read into the operative provision, it may be seen that s 12D(2) has been expressed at a relatively high level of generality when describing damages for non-economic loss for "the need" for domestic services "provided to a person by another person" gratuitously. Notably, the relevant "need" for domestic services, the subject of the claim for damages, is not expressly tied to the need of the claimant or plaintiff before the Tribunal.
Whether or not Sullivan v Gordon type damages, which are now recognised in a modified form by s 15B of the Civil Liability Act, were in the contemplation of the drafter of s 12D is not the point. The question is whether the language used in the definition in s 12D(3)(e), when read into the operative provision, describes a claim for damages for non-economic loss that answers the description of s 15B damages.
Although the arguments are somewhat finely balanced, on the assumption that the prohibition in s 12D(2) is engaged, the construction advanced by the Estate should be preferred. First, whilst the language used in subs (3)(e) readily answers the description of a Griffiths v Kerkemeyer type claim, which is now recognised by s 15A of the Civil Liability Act, the language is sufficiently general to apply to things not then recognised or enacted.
Secondly, the definition in s 12D(3)(e) covers the essential attributes of a claim for s 15B damages, being the loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants. The preconditions to s 15B damages include in subs (2)(d) that there will be a "need" for the services to be provided to meet the six hours per week threshold and the six consecutive months threshold, and "that need" is reasonable in all the circumstances. Claims for s 15B damages may be seen to come within the description of the head of damage in s 12D(3)(e), which refers to the "need" for domestic services provided to a person (here the dependant) by another person (here the claimant) for which the first person has not paid and is not liable to pay any fee or charge.
Thirdly, the fact that s 12D does not expressly refer to the claimant's loss of capacity to provide domestic services to the claimant's dependants is not fatal. Accepting the "always speaking" approach to the interpretation of s 12D, the general language of s 12D(3)(e), which does not limit the "need" to the claimant's need for domestic services, is equally apt to describe both Griffiths v Kerkemeyer type claims (see now s 15A) and Sullivan v Gordon type claims (see now s 15B).

[42]

(3) Notice of contention: Has Mrs Dionysatos previously "recovered damages" in respect of Mr Dionysatos' loss of capacity to provide domestic services?

Acrow's notice of contention relied upon s 15B(6) of the Civil Liability Act. Subsection (6), like subss (7) to (9) of s 15B prevents an award of s 15B damages in certain circumstances.
The term "damages" is defined broadly in the Civil Liability Act, s 3, to include any form of monetary compensation other than payments under State industrial instruments, payments under a superannuation scheme or payments made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy.
Subsections (6) and (7), which should be read together, provide: (6) Circumstances when damages may not be awarded 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. (7) A person (including a dependant of a claimant) may not be awarded damages for a loss sustained by the person by reason of the claimant's loss of capacity to provide gratuitous domestic services if the claimant (or the legal personal representative of a deceased claimant) has previously recovered damages in respect of that loss of capacity.
Reference should also be made to the next two subsections. Section 15B(8) prevents an award of damages under s 15B in respect of a claimant's loss of capacity to provide gratuitous domestic services where the loss results from a motor accident injury, the claimant is a participant in the Scheme established by the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) and the treatment and care needs being provided pursuant to that Scheme include the provision of such domestic services to the claimant's dependants.
Section 15B(9) similarly prevents an award of damages under s 15B in respect of a claimant's loss of capacity to provide gratuitous domestic services where the loss results from an injury caused by a motor accident, and an insurer has made or is liable to make payments for such services under s 83 of the Motor Accidents Compensation Act 1999 (NSW).
In the case of each of these statutory schemes, the exclusion in subs (8) and (9) only operates "to the extent that" the gratuitous domestic services are in fact being compensated by either of the relevant motor accident schemes.

[43]

Notice of contention

Acrow's notice of contention is somewhat curiously expressed, and states: "that the [primary] judge's decision not [sic] to reduce the damages to which the plaintiff was entitled to recover was legally justified under s 15B(6) of the Civil Liability Act".
Acrow contended that s 15B(6) had the effect in the present case of preventing any award of s 15B damages. It was submitted that the Estate (or more correctly the legal personal representative of the Estate) may not be awarded damages for any loss of Mr Dionysatos' capacity to provide gratuitous domestic services to any dependant, because the dependant (Mrs Dionysatos) "has previously recovered damages in respect of that loss of capacity".
The Estate did not suggest that Acrow's attempt to support the primary judge's decision on a new ground is not open on appeal under s 32(1) of the Tribunal Act because there was no "decision of the Tribunal in point of law" on that ground: cf Downes v Amaca Pty Ltd at [157] (Handley AJA), [59] (Basten JA), [120] (Campbell JA).
Although not articulated precisely in this way, Acrow's contention relies upon the implicit decision of the primary judge to allow s 15B damages, notwithstanding the prohibition in s 15B(6). In the absence of any objection by the Estate, it is appropriate to deal with the notice of contention as raising an implicit decision of the Tribunal in point of law, that the prohibition in s 15B(6) did not apply here.
What is in issue is whether the compensation payments received by Mrs Dionysatos from the Board represent damages recovered "in respect of that loss of capacity", that is, the loss of Mr Dionysatos' capacity to provide gratuitous domestic services to any dependant. Acrow contended, and the Estate disputed, that the compensation received by Mrs Dionysatos should be so characterised.
Although not determinative, it is telling that Acrow's written submissions in response to ground 3 are inconsistent with the construction it sought to give to s 15B(6) in its belated notice of contention. In its written submissions, Acrow emphasised the different character of the benefits under the Dust Diseases Act, which were said to be statutory, while the subject matter of s 15B(6)-(9) of the Civil Liability Act was described as "damages payable by tortfeasors under other legislation".
In oral argument Acrow departed from its written submissions and contended that the compensation awarded to Mrs Dionysatos answers the description in s 15B(6) of "previously recovered damages" in respect of Mr Dionysatos' loss of capacity to provide gratuitous domestic services to any dependant.
The Estate contended that s 15B(6) does not apply because the compensation paid or payable to Mrs Dionysatos under the Dust Diseases Act is not in respect of Mr Dionysatos' loss of capacity to provide domestic services to any dependant (as referred to in s 15B), but compensation in respect of Mrs Dionysatos' own injury (as referred to in s 8(2B)(d)); that is, the compensation in respect of the loss of support of her (deceased) husband.
The Estate further contended that the ordinary meaning of the word "recovered" was a strong indication that the reference to "damages recovered" in s 15B(6) is to be understood as a reference to recovery by legal process or action, unlike an award of compensation by the Board to dependants of a deceased worker. Attention was drawn to the dictionary meaning of "recovery", which included, relevantly: 10. Law the obtaining of right to something by verdict or judgment of a court of law: Macquarie Dictionary (Online).

[44]

Consideration

There are a number of difficulties with Acrow's construction of s 15B(6). First, read in context, and particularly with the related provision in subs (7), the reference to "previously recovered damages" is better understood as a reference to damages recovered from a tortfeasor against whom the dependant of the claimant had a cause of action consequent upon the claimant's death. The paradigm example would be the claim of a dependent widow under the Compensation to Relatives Act.
Secondly, although "damages" in subs (6) is broadly defined to include "compensation", the statutory benefits to which a worker's dependant is entitled under the Dust Diseases Act do not answer the description of damages "in respect of that loss of capacity". The "loss of capacity" referred to in s 15B(6) is the impairment of the claimant's capacity to provide gratuitous domestic services to any dependant. That loss is different from the injury to a person who is, relevantly, partially dependent on the worker for support as at the date of his death under s 8(2B)(d). The award made to the partially dependent widow is a proportion of the defined benefits which may be awarded under s 8(2B)(b) to a dependant who is wholly dependent.
Thirdly, on the construction advanced by Acrow, subs (7) would need to be read as having the effect of preventing the Board awarding any compensation to Mrs Dionysatos if s 15B damages had already been recovered by Mr Dionysatos or his Estate. But counsel for Acrow accepted that s 15B(7) did not operate so as to preclude the Board from awarding compensation under s 8 of the Dust Diseases Act (tcpt CA 17/10/14 at 97, line 29), and that there was no provision in the Dust Diseases Act, including as s 8(6), which would have that effect (tcpt CA 17/10/14 at 98, lines 26-49).
Acrow ultimately acknowledged in oral argument that its construction of subs (6) could not be easily carried through into subs (7) (tcpt CA 17/10/14 at 98, lines 30-31). This is a further reason for doubting Acrow's construction of subs (6), as subss (6) and (7) are complementary provisions and should be construed so far as possible to operate in harmony and not in conflict: Commissioner of Police (NSW) v Eaton at [98] (Gageler J) and [78] (Crennan, Kiefel and Bell JJ).
Fourthly, a consideration of the secondary materials does not lead to a conclusion different to that which is suggested by the plain words of subs (6) and (7): Interpretation Act 1987 (NSW), s 34(1)(a). The second reading speech for the Civil Liability Amendment Bill 2006 (NSW) included the following: Subsections (6), (7), (8) and (9) of proposed section 15B address potential overlaps between damages under proposed section 15B and other damages, whether at common law or under the statutory schemes referred to in proposed subsections (8) and (9). These provisions ensure that there will be no double recovery for the one loss. As a result of public consultation, subsections (6) and (7) of proposed sections [sic] 15B have been clarified to make express reference to recovery by the legal personal representative of a deceased claimant.
The evident legislative intent was to ensure that there would be no double recovery for the one loss caused by the tortfeasor. That is not the present case. Here, the only claim against the tortfeasor, Acrow, is that brought by the Estate. Mrs Dionysatos did not bring any claim against Acrow. She made a claim for compensation under s 8(2B)(d) which was paid by the Board out of the Fund maintained by the Board.
For these reasons, Acrow's notice of contention should be rejected.

[46]

The primary judge's reasons

The primary judge made the following findings in relation to the claim for s 15B damages.

At the time of Mr Dionysatos' death in July 2012, Mrs Dionysatos was 80 years of age. She was physically frail and suffering dementia: at [83]. (The evidence established that Mrs Dionysatos fell ill in about mid 2010).
Mrs Dionysatos should not be left alone for periods in excess of 30 minutes, against the possibility that she may fall or wander: at [83].
Mr and Mrs Dionysatos lived in the rented ground floor home unit of their daughter, Aspasia, at Mortlake. Aspasia's daughter, Arielle, aged 21 when Mr Dionysatos died, also lived in the home: at [84].
Mr Dionysatos "alone" cared for his wife during those times during the week when Aspasia was at work, and Arielle attended university: at [86]. (His Honour did not make any express finding as to who cared for Mrs Dionysatos when they were all at home during nights.)
On weekends Mr Dionysatos "sometimes" went fishing, and "sometimes" attended football games of his grandsons: at [86].
When Mr Dionysatos was absent from the house, Aspasia or Arielle attended to the needs of his wife: at [87].

The primary judge next referred to the care provided to Mrs Dionysatos, after the death of Mr Dionysatos. His Honour found that Arielle, who had graduated from university, but had not yet found full-time employment, cared for her grandmother during weekdays. In addition, when Arielle was absent on Thursday nights and Sundays due to part-time employment, Aspasia looked after her mother: at [88]. His Honour further found that occasionally on weekends Mrs Dionysatos stayed with her son, Gerisamos, who lived at Castle Hill: at [89].
At [107]-[108] the primary judge referred to the critical reference to "need" in paragraph (d) of s 15B(2) noting the statement of Basten JA in State of New South Wales v Perez [2013] NSWCA 149; 84 NSWLR 570 at [19].
In assessing whether Mrs Dionysatos had a need for the provision of alternative services after Mr Dionysatos was deprived of his capacity to provide services, the primary judge took into account two matters. First, the circumstance that Mrs Dionysatos was presently cared for by her daughter and son in discharge of "filial duties" owed to an aged parent: at [109]; and secondly, the circumstance that Mr Dionysatos did not attend to his wife full-time on weekends - his Honour stated that he "often" went fishing and watched his grandsons play sport: at [110]. (His Honour's description of this having occurred "often" on the weekends, is at odds with his earlier finding (at [86]) that this occurred "sometimes" on weekends.)
His Honour concluded that there was a reasonable need for the provision of services during those times when Mrs Dionysatos' son and daughter attended to their respective employment and business, or neither was available. He assessed that need at 50 hours per week: at [111]. (It seems from the transcript of the primary judge's comments during oral closing submissions, that this reflected an assessment of 10 hours a day Monday to Friday (tcpt 12/7/13 at 148, lines 2-5).) His Honour found that the reasonable cost of care was $1319 per week: at [112].
His Honour calculated the entitlement to past gratuitous care at $108,553 and future care at $246,372, giving a total of $354,925: at [113].

[47]

Consideration

The operative provision in s 15B is subs (2) (set out above at [185]). Aspects of this provision were considered by this Court in State of New South Wales v Perez at [14]-[21]. Relevantly, the following propositions were stated by Basten JA (Ward JA agreeing).
First, s 15B(2) speaks from the date at which the liability arose, as referred to in subs (2)(a). Accordingly the activities of the claimant prior to that time set the upper limit of what can be claimed, subject to satisfaction of the subsequent paragraphs: at [14].
Secondly, subs (2)(c) requires an assessment of the time over which the services would have been provided to the claimant's dependants: at [21].
Thirdly, the reference to "need" in subs (2)(d) focuses upon the specified temporal scope of the services provided, being that identified in subs (2)(c) - that the services be provided for at least six hours per week for at least six consecutive months: at [19].
Fourthly, the phrase "reasonable in all the circumstances" qualifies not the word "need", but the phrase "that need" in para (d). Thus the focus is not merely the need of the dependant, but the time which would have been taken to deliver services in satisfaction of that need. This involves an evaluative judgment undertaken by reference to the standard of reasonableness having regard to all relevant circumstances in the particular case: at [19].
None of the preconditions in s 15B(2) were in issue in the present case. What was in issue was his Honour's approach to the evaluation of "that need" of Mrs Dionysatos for care and services which was "reasonable in all the circumstances".
Before the Tribunal, the Estate contended in para (15.43) of its closing submissions that: At its highest the evidence supports the need for 24 hour care. At another level the Tribunal may consider that at least the daytime hours from 7.00 am to 7.00 pm to be strongly supported by the evidence. A further small allowance should be made for active care provided at night.
This submission was the basis for the Estate's alternative calculation of the s 15B damages as set out in para (15.44) of its closing submissions. Those calculations were premised upon either 24 hour care, or 13 hours care per day.
It needs to be emphasised that the appeal is limited to a decision which is erroneous in point of law. Accordingly the Court must resist the invitation in the parties' submissions to review the competing factual and medical evidence relied upon in the Tribunal for the assessment of Mrs Dionysatos' need for care and services at the time of the injury to her husband.
The only question before the Court is whether his Honour's approach to the evaluative task required under s 15B(2)(d) was erroneous. Insofar as his Honour had regard to the circumstance that Mr Dionysatos did not attend to his wife full-time on weekends, there was evidence which supported this finding, and it is not open to the Estate on appeal to complain that his Honour overstated or misunderstood the effect of this evidence.
Insofar as his Honour took into account the circumstance that Mrs Dionysatos is presently cared for by her daughter and son in discharge of "filial duties" owed to an aged parent, the Estate is on stronger ground in asserting legal error. It was submitted that this erroneous approach meant that the primary judge failed to award damages under s 15B to the extent that the services previously provided by Mr Dionysatos are now undertaken by another person, who could by reason of some family connection or obligation, be expected to provide those services gratuitously even though they were not providing them before Mr Dionysatos was injured.
The Estate contended that if the correct approach had been taken, the s 15B damages would have been calculated by reference to a much higher number of hours per week to reflect the fact that Mr Dionysatos was the full-time carer for his wife.
Acrow contended that on the case advanced by the Estate at trial, it was open to his Honour to conclude that 50 hours per week represented the relevant loss. Acrow pointed to a concession by counsel for the Estate at trial that there would be particular times when the whole family was at home, and contended that this operated as a relevant discount factor in determining what was reasonable in the circumstances.
Acrow sought to explain the judge's reference to the "present" engagement of Mr Dionysatos' daughter and son in the care of their mother as explicable because there was evidence to suggest a significant family involvement in her care before Mr Dionysatos became unwell, which would be likely to continue into the future. Acrow contended that his Honour's reasons should be read as simply determining what the likely contribution would have been by Mr Dionysatos but for his injury.
The difficulty with this submission is two-fold. First, when read in context, his Honour's reference to "filial duties" (at [109]) was a reference to the care provided after the death of Mr Dionysatos, and in particular, to his Honour's earlier factual findings: at [88] and [89]. His Honour was required to evaluate the reasonableness "in all the circumstances" of "that need" of Mrs Dionysatos, but for the injury to her husband, for services and the time which would have been taken to deliver services in satisfaction of that need. His Honour did not approach the question in that manner. Indeed he seems to have excluded from consideration, except on weekends, what services Mr Dionysatos would likely have provided to his wife, but for his injury.
Secondly, his Honour focused almost exclusively on the fact that the need is now satisfied by others following the death of Mr Dionysatos. As Basten JA explained in State of New South Wales v Perez at [26], the fact that the need is now satisfied by others may demonstrate the genuineness of the need; on the other hand, the extent that the need is now satisfied by others alone, in circumstances in which they and the claimant have been jointly responsible in the past, may call into doubt the need for the claimant's services.
The primary judge was confronted with evidence that during weekdays Mrs Dionysatos' daughter and granddaughter were at home at nights, as was Mr Dionysatos. The Estate fairly acknowledged before his Honour that at times when the whole family was at home, to some extent the needs of Mrs Dionysatos for services may have, been satisfied by other family members. But his Honour did not attempt to evaluate the evidence concerning the extent to which Mr Dionysatos and other family members had been jointly responsible in the past, either during weekdays or on weekends, for the domestic care and services provided to Mrs Dionysatos. Rather, his Honour's assessment of 50 hours per week focused solely on the times when Mrs Dionysatos' son and daughter are now at work, or otherwise not available to provide services to Mrs Dionysatos.
As a consequence, the approach adopted by his Honour resulted in calculations being undertaken which focused on the extent to which Mrs Dionysatos' need for services is now satisfied by other family members. That approach was erroneous.
Grounds 1 and 2 should be upheld.

[48]

Conclusion and orders

Acrow's challenges to the Tribunal's factual findings on the question of liability on the ground of "no evidence", have failed. Accordingly, the Tribunal's decision on liability has not been shown to be erroneous in point of law. It follows that the notice of cross-appeal should be dismissed with costs.
The Tribunal's approach to the assessment of s 15B damages was erroneous in deducting from the Estate's s 15B damages, the compensation paid or payable to Mrs Dionysatos under the Dust Diseases Act assessed with a value of $207,072. If that was the only operative error then this Court could reach a conclusion as to the relevant question of law (the deductibility issue) since the facts necessary to determine that question have been found by the Tribunal: Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [11] and [16] (Allsop P), [239]-[240] (Basten JA; Simpson J agreeing)
The parties were agreed however that if the Estate also succeeded, as it has, in its challenge to the approach taken by the Tribunal to the assessment of s 15B damages, then the matter should be remitted to the Tribunal for the determination of damages under s 15B. This is because the relevant findings necessary for this Court to determine the s 15B damages have not been made by the Tribunal. Accordingly, that question should be remitted to the Tribunal where the necessary factual findings can be made: Allianz Australia Insurance Ltd v BlueScope Steel Ltd [2014] NSWCA 276; 87 NSWLR 332 at [328]-[335] (Ward JA; Meagher JA agreeing).
As to the costs of the appeal, the Estate has achieved substantial success on the deductibility issue; Acrow should pay the Estate's costs of the appeal.
As to the form of orders, there is no reason why the remission of the s 15B damages should reopen the entire damages award. Under s 32(2) of the Tribunal Act, the Court may, on the hearing of any appeal, remit the matter to the Tribunal for determination by the Tribunal in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court sees fit.
It has been said that s 32(2) of the Tribunal Act enables this Court to limit and define the remitted issue or issues, and if thought necessary Uniform Civil Procedure Rules 2005 (NSW) r 51.53(2) and (3) may also be available: Downes v Amaca Pty Ltd at [160] (Handley AJA; Campbell JA agreeing).
It being common ground that the only issue with respect to damages concerns the s 15B damages, the appropriate course, in my view, is that the judgment of the Tribunal be set aside, and in its place, judgment be entered for the amount of damages which is unchallenged, leaving the Estate's claim for s 15B damages is to be determined by the Tribunal on remittal.
I would therefore propose the following orders: (1) Appeal allowed. (2) Cross-appeal dismissed. (3) Judgment and orders of the Dust Diseases Tribunal given on 29 August 2013 as between the plaintiff and the defendant be set aside except as to costs, and in place thereof, order that there be judgment for the plaintiff against the defendant in the sum of $342,289, together with such further amount as the Tribunal shall award pursuant to s 15B of the Civil Liability Act 2002 (NSW). (4) Proceedings remitted to the Tribunal for the purpose of determining the damages to be awarded under s 15B of the Civil Liability Act 2002 (NSW) in accordance with law. (5) Respondent/cross-appellant to pay the appellant/cross-respondent's costs in this Court.

Parties

Applicant/Plaintiff:

Dionisatos (for the Estate of the late George Dionysatos)

Respondent/Defendant:

Acrow Formwork & Scaffolding Pty Ltd

Legislation Cited (29)

Workers' Compensation (Dust Diseases) Act 1942(NSW)ss 5, 6, 7, 8(1), 8(2B), 8E

Civil Liability Amendment Act 2006(NSW)

Construction Safety Act 1912(NSW)

Scaffolding and Lifts Act 1912(NSW)

Scaffolding and Lifts Regulation 1950(NSW)reg 73

Victims Compensation Act 1987(NSW)

Workers' Compensation Act 1926(NSW)ss 8, 9

Workers' Compensation (Amendment) Act 1964(NSW)

Workers' Compensation (Dust Diseases) Amendment Act 1967(NSW)

Workers' Compensation (Dust Diseases) Regulation 2008(NSW)reg 8

Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998(NSW)

Workers' Compensation (Silicosis) Act 1942(NSW)

ed, 2014, LexisNexis Butterworths) D Villa, Annotated Civil Liability Act 2002(NSW)

Thus, the Law Reform (Miscellaneous Provisions) Act 1944(NSW)

Construction Safety Regulations 1950(NSW)

Scaffolding and Lifts Regulations 1950(NSW)

as damages for loss of capacity to provide domestic services): D Villa, Annotated Civil Liability Act 2002(NSW)

See State Insurance and Care Governance Act 2015(NSW)

Compare the Compensation to Relatives Act 1897(NSW)

Civil Liability Act 2002(NSW)ss 3, 3B, 15B

Compensation to Relatives Act 1897(NSW)ss 3, 4

Dust Diseases Tribunal Act 1989(NSW)ss 4, 11, 12B, 25, 32

Interpretation Act 1987(NSW)s 34

Law Reform (Miscellaneous Provisions) Act 1944(NSW)s 2

Motor Accidents Compensation Act 1999(NSW)s 83

Motor Accidents (Lifetime Care and Support) Act 2006(NSW)

Police Regulation (Superannuation) Act 1906(NSW)ss 12D, 12E

State Insurance and Care Governance Act 2015(NSW)

Uniform Civil Procedure Rules 2005(NSW)r 51.53, r 51.53(2)

Cases Cited (56)

W) ss 8, 9 Workers' Compensation (Amendment) Act 1964 (NSW) Workers' Compensation (Dust Diseases) Act 1942 (NSW) ss 5, 6, 7, 8(1), 8(2B), 8E Workers' Compensation (Dust Diseases) Amendment Act 1967 (NSW) Workers' Compensation (Dust Diseases) Amendment Bill 1967 (NSW) Workers' Compensation (Dust Diseases) Regulation 2008 (NSW) reg 8 Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 (NSW) Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Bill 1998 (NSW) Workers' Compensation (Silicosis) Act 1942 (NSW) Cases Cited: Aid/Watch Inc v Commissioner of Taxation [2010] HCA 42; 241 CLR 539 Allianz Australia Insurance Ltd v BlueScope Steel Ltd [2014] NSWCA 276; 87 NSWLR 332 Amaba Pty Ltd v Booth [2010] NSWCA 344 Amaca Pty Ltd v Booth [2011] HCA 58; 246 CLR 36 Amaca Pty Ltd v Cremer (As executor of the estate of the late Winifred Cremer) [2006] NSWCA 164; 66 NSWLR 400 Amaca Pty Ltd v Novek [2009] NSWCA 50; 9 DDCR 199 Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288; 3 DDCR 149 BHP Billiton Ltd v Dunning [2015] NSWCA 55 Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512 Burnicle v Cutelli [1982] 2 NSWLR 26 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 Clark v Macourt [2013] HCA 56; 253 CLR 1 Commercial Minerals Ltd v Harris [1999] NSWCA 94 Commissioner of Police (NSW) v Eaton [2013] HCA 2; 252 CLR 1 Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 CSR Ltd v D'Arcy (1996) 40 NSWLR 721 CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1 Cummings v Canberra Theatre Trust (Federal Court (Full Court), 18 June 1980, unrep) De Sales v Ingrilli [2002] HCA 52; 212 CLR 338 Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 Downes v Amaca Pty Ltd [2010] NSWCA 76; 78 NSWLR 451 Fisher v Hebburn Ltd [1960] HCA 80; 105 CLR 188 Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 Haines v Bendall [1991] HCA 15; 172 CLR 60 Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1 Hodges v Frost (1984) 53 ALR 373 Hore v Albury Radio Taxis Co-operative Society Limited [2002] NSWSC 1130; 56 NSWLR 210 James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729 Kelly v The Queen [2004] HCA 12; 218 CLR 216 Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 Kostas v HIH Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Manser v Spry [1994] HCA 50; 181 CLR 428 McPherson's Ltd v Eaton [2005] NSWCA 435; 65 NSWLR 187 National Insurance Co of New Zealand v Espagne [1961] HCA 15; 105 CLR 569 Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 Pacific Power v Royal [1999] NSWCA 350; 47 NSWLR 366 Paciocco v Australia and New Zealand Banking Group Ltd [2015] FCAFC 50 Preston v Commissioner for Fair Trading [2011] NSWCA 40; 80 NSWLR 359 Public Trustee v Zoanetti [1945] HCA 26; 70 CLR 266 R v Ireland; R v Burstow [1998] AC 147 Redding v Lee [1983] HCA 16; 151 CLR 117 SAS Trustee Corporation v Budd [2005] NSWCA 366 State of New South Wales v Perez [2013] NSWCA 149; 84 NSWLR 570 Stingel v Clark [2006] HCA 37; 226 CLR 442 Sturch v Willmott [1997] 2 Qd R 310 Sullivan v Gordon [1999] NSWCA 338; 47 NSWLR 319 The Queen v Gee [2003] HCA 12; 212 CLR 230 Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449 Workers' Compensation Dust Diseases Board of NSW v Cook [2015] NSWCA 270 Texts Cited: H Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002, Butterworths)

Cited By (16)

Allen v TriCare

Amaca Pty Limited (Under NSW Administered Winding Up) v Roseanne Cleary as the Legal Personal Representative of the Estate of the Late Fortunato

Anglican Church Property Trust Diocese of Sydney v Camden Council

Behman v Behman

Daniel Terry Behman v Tarek Behman

FBY v Secretary, NSW Ministry of Health

FVN v Secretary, Department of Education

Gardiner v Laing O'Rourke Australia Construction Pty Ltd

HEADNOTE [This headnote is not to be read as part of the judgment] Mr George Dionysatos was employed by the respondent (Acrow) from 1963 to 1969 as a scaffolder at the construction site of the Sydney Opera House. Mr Dionysatos became ill in October 2011, was diagnosed with mesothelioma in April 2012, and died on 13 July 2012. Prior to his illness, Mr Dionysatos cared for his wife who suffered from dementia and other illnesses. Mr and Mrs Dionysatos' children and granddaughter have been providing care for her since. Shortly before his death, Mr Dionysatos commenced proceedings against Acrow in the Dust Diseases Tribunal (Tribunal) alleging, amongst other things, that he contracted mesothelioma as a result of his exposure to asbestos dust and fibre during the course of his employment with Acrow and that Acrow had been negligent in the performance of its duties as his employer by permitting his exposure to asbestos. The proceedings were continued thereafter by his son as representative of Mr Dionysatos' estate (Estate). Upholding the claim, the Tribunal awarded damages of $490,142 to the Estate. One component of that sum included $147,853 by way of damages pursuant to s 15B of the Civil Liability Act 2002 (NSW) (s 15B damages) for Mr Dionysatos' loss of capacity to provide gratuitous domestic services to Mrs Dionysatos. In assessing s 15B damages, the primary judge made a deduction of $207,072, which was the value of compensation awarded by the Dust Diseases Board (Board) to Mrs Dionysatos, as a spouse "partially dependent on [Mr Dionysatos] for support", pursuant to s 8(2B)(d) of the Workers' Compensation (Dust Diseases) Act 1942 (NSW) (Dust Diseases Act). That compensation was paid and payable by way of a lump sum and weekly payments. Section 15B(6) of the Civil Liability Act provided that s 15B damages could not be awarded "if the dependant has previously recovered damages in respect of that loss of capacity." Section 12D of the Dust Diseases Tribunal Act 1989 (NSW) (Tribunal Act) provided that, in determining damages for non-economic loss (for claims such as by the Estate) in proceedings before the Tribunal, no deduction is to be made for any amount of compensation paid or payable under the Dust Diseases Act. 'Non-economic loss' as defined in s 12D(3)(e) included "damages or compensation for … the need for" gratuitous domestic services "which have been or are to be provided to a person by another person". That provision predated s 15B of the Civil Liability Act. The Estate appealed as to the award of damages and Acrow cross-appealed with respect to the finding of liability. The appeal and cross-appeal were limited to errors in point of law. Acrow's cross-appeal challenged factual findings made by the primary judge, contending that there was "no evidence" for his Honours findings that: (1) Mr Dionysatos was exposed to asbestos dust when working at the Opera House site; and (2) Acrow knew, or should have known, of Mr Dionysatos' exposure to asbestos dust. The Estate's appeal raised the following issues: (3) Should the compensation awarded to Mrs Dionysatos by the Board be deducted from the Estate's s 15B damages applying the rule against double recovery? (4) Alternatively, does s 12D of the Tribunal Act operate to prohibit the deduction of Mrs Dionysatos' statutory benefits from the Estate's s 15B damages? (5) Has Mrs Dionysatos previously "recovered damages" within the meaning of s 15B(6) in respect of the loss of Mr Dionysatos' capacity to provide gratuitous domestic services to her as a dependant, with the consequence that the Estate cannot recover s 15B damages at all? (6) Did the primary judge err in his approach to s 15B damages by taking into account "filial duties" of those presently providing care and services to Mrs Dionysatos? Held, allowing the Estate's appeal, and dismissing Acrow's cross-appeal: (1) & (2) Where competing inferences may be drawn from different material, it is well within the scope of the tribunal of fact to determine which would be preferred. Acrow did not establish that the primary judge erred in point of law in making the findings of fact that Mr Dionysatos was exposed to asbestos while working at the Opera House, and that Acrow knew or should have known of the exposure: [96]-[104], [112], [126]-[127], [142], [153] (Gleeson JA; Basten JA and Macfarlan JA agreeing). Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 applied. BHP Billiton Ltd v Dunning [2015] NSWCA 55 considered. (3) The compensation awarded to Mrs Dionysatos by the Board should not be deducted from the Estate's s 15B damages: (a) The primary judge erred by disregarding the fact that the compensation was awarded to Mrs Dionysatos, not the Estate: [201]-[208] (Gleeson JA; Macfarlan JA agreeing). Haines v Bendall [1991] HCA 15; 172 CLR 60; SAS Trustee Corporation v Budd [2005] NSWCA 366; Manser v Spry [1994] HCA 50; 181 CLR 428; Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1 applied. (b) The compensation paid to Mrs Dionysatos by the Board did not represent the "same loss" that is compensated by s 15B damages. The compensation paid to a dependant who was partially dependent on the worker for support under s 8(2B)(d) of the Dust Diseases Act was a proportion of the defined benefit which may be awarded under s 8(2B)(b) of the Dust Diseases Act. The award was not commensurate with the "value" of the loss of support. Section 15B damages, on the other hand, are to compensate the injured claimant for loss of the claimant's capacity to provide gratuitous domestic services: [27] (Basten JA); [209]-[218] (Gleeson JA; Macfarlan JA agreeing). Amaca Pty Ltd v Novek [2009] NSWCA 50; 9 DDCR 199 applied. Fisher v Hebburn Ltd [1960] HCA 80; 105 CLR 188 considered. (4) In respect of s 12D: (a) Section 12D did not operate to prohibit the deduction of the compensation paid or payable to Mrs Dionysatos by the Board from the Estate's s 15B damages because no deduction was required from the Estate's s 15B damages under the general law: [236]-[243], [267] (Gleeson JA; Macfarlan JA agreeing). Commercial Minerals Ltd v Harris [1999] NSWCA 94; Pacific Power v Royal [1999] NSWCA 350; 47 NSWLR 366 applied. James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729 considered. (b) The language of subs (3)(e) in its ordinary meaning expressly prevents the reduction of damages payable to the Estate on account of compensation paid or payable under the Dust Diseases Act to Mrs Dionysatos. Section 12D should not be read down so as to exclude s 15B damages from its operation: [9]-[17] (Basten JA; Macfarlan JA agreeing). Brodie v Singleton Shire Council [2001] HCA 29; 206 CLR 512; Aid/Watch Inc v Commissioner of Taxation [2010] HCA 42; 241 CLR 539; Amaca Pty Ltd v Cremer (As executor of the estate of the late Winifred Cremer) [2006] NSWCA 164; 66 NSWLR 400; Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622 applied. (c) If (contrary to the conclusion in (a) above) the compensation was deductible from the s 15B damages under general law, the definition of 'non-economic loss' in subs (3)(e), when read into the substantive provision, covered the essential attributes of a claim for s 15B damages with the consequence that s 12D(2) would prohibit the deduction of Mrs Dionysatos' compensation from the Estate's award of s 15B damages: [244]-[266], [268] (Gleeson JA; Macfarlan JA agreeing). Commissioner of Police (NSW) v Eaton [2013] HCA 2; 252 CLR 1; Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113; Kelly v The Queen [2004] HCA 12; 218 CLR 216 applied. (5) Section 15B(6) did not apply to exclude the Estate's entitlement to s 15B damages. (a) The meaning of "damages" in s 15B(6) does not include payments of compensation by the Board. The absence of any relation between the amount of the compensation and the particular dependency, demonstrates the inappropriateness of treating the compensation as "damages": [18]-[30] (Basten JA; Macfarlan JA agreeing). Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 applied. (b) The "loss of capacity" referred to in s 15B(6) refers to the claimant's loss of capacity to provide gratuitous domestic services to a dependant. That loss is different from the injury to a dependant, who is partially dependent on the worker for support as at the date of his death: [284]-[290] (Gleeson JA; Macfarlan JA agreeing). Commissioner of Police (NSW) v Eaton [2013] HCA 2; 252 CLR 1 applied. (6) The primary judge erred in his approach to s 15B damages by failing to evaluate the evidence concerning the extent to which Mr Dionysatos and the other family members had been jointly responsible in the past for the domestic care provided to Mrs Dionysatos, and focusing on the fact that Mrs Dionysatos' need is now satisfied by other family members: [34]-[35] (Macfarlan JA); [297]-[315] (Gleeson JA, Basten JA agreeing). State of New South Wales v Perez [2013] NSWCA 149; 84 NSWLR 570 applied.

Conclusions

As the worker's estate submitted, the primary judge was wrong in assessing damages by reducing the amount of the award by the amount of the payments made or to be made by the board or now the Authority to the widow of the deceased. As the amount of the deduction is known, it would be a simple matter for this Court to reinstate the calculated deduction and give judgment for the amount which should have been awarded.
However, as explained by Gleeson JA, there has been an additional error on the part of the trial judge in making allowance for the assistance provided by others in caring for the widow during her dementia. Accordingly, the final figure cannot be determined by this Court. That figure will be higher than the amount presently determinable, but it is not possible to say by how much on an appeal limited to determining whether there have been errors of law. Accordingly, it is necessary to remit the matter to the Tribunal, although with the hope that the assessment may be resolved without further litigation. In the meantime, the appellant estate is entitled to a judgment for the amount which can be resolved on the figures available in the judgment of the Tribunal.
MACFARLAN JA: I agree with the judgments of Basten and Gleeson JJA.
In support of Gleeson JA's conclusions in relation to the primary judge's assessment of s 15B damages ([291]-[315] below), I refer to my observation in State of New South Wales v Perez [2013] NSWCA 149; 84 NSWLR 57 at [39] concerning s 15B(2)(d) that: "[s]ense can only be given to the paragraph by construing it as referring to the needs of the dependants that would, but for the claimant's injury, have been satisfied by the claimant. In conformity with the provisions as so construed, the court must determine whether the dependants' needs for the services that would have been provided by the claimant are "reasonable in all the circumstances"."
I went on to give an example of circumstances in which the dependants' needs might not be "reasonable in all the circumstances". The present case is not like that example. Here, Mrs Dionysatos' need for Mr Dionysatos to provide her with assistance (if he had not been prevented from providing it by his illness and subsequent death) was reasonable notwithstanding that other family members might have been available to assist.
GLEESON JA: Table of contents Introduction [37] Issues on appeal and cross-appeal [45] The use of asbestos at the Opera House [53] Applicable regulations with respect to the inhalation of dust [61] Mr Dionysatos' exposure to asbestos [64] Matters not in issue [74] The Tribunal's reasons on liability [77] Issue 1: Asserted factual errors [93] Exposure to dust containing asbestos [105] (1) Corroboration by Mr Tsoukalas [106] (2) The use of gunite [113] (3) Exposure in February 1966 [128] Acrow's knowledge of exposure [143] Issue 2: Damages [157] Relevant legislation [160] Dust Diseases Act [161] Section 12D Tribunal Act [180] Section 15B damages [184] Issues on appeal with respect to damages [195] (1) Ground 3: Should the Dust Diseases Act compensation awarded to the dependant be deducted from the Estate's damages? [196] The primary judge's reasons [197] Consideration [201] (2) Ground 4: Does s 12D of the Tribunal Act operate to prohibit the deduction of Mrs Dionysatos' statutory benefits from the Estate's claim for s 15B damages? [232] The primary judge's reasons [233] Consideration [236] (3) Notice of contention: Has Mrs Dionysatos previously "recovered damages" in respect of Mr Dionysatos' loss of capacity to provide domestic services? [269] Notice of contention [275] Consideration [284] (4) Grounds 1 and 2: Did the primary judge adopt an erroneous approach to the assessment of s 15B damages? [291] The primary judge's reasons [291] Consideration [297] Conclusion and orders [316]