DOWNES v AMACA Pty Ltd

Court of Appeal (NSW)|2010-04-15|Before: Basten JA, Campbell JA, Curtis J

CITATION: DOWNES v AMACA Pty Ltd [2010] NSWCA 76 This decision has been amended. Please see the end of the judgment for a list of the amendments.

JUDGMENT OF: Basten JA at 1; Campbell JA at 61; Handley AJA at 122

(1) Appeal allowed in part; (2) Judgment of the Dust Diseases Tribunal set aside except as to costs; DECISION: (3) Proceedings remitted to the Tribunal for the purpose of determining whether the assessed amount of $156,443.05 for the plaintiff's past and future expenses or some other amount should be deducted from his damages assessed at $311,743.05; (4) Subject to s 13(6) of the Tribunal Act the rehearing of the proceedings is limited to the issue so remitted; (5) Respondent to pay the appellant's costs of the appeal.

CATCHWORDS: DAMAGES - medical and other expenses payable by Dust Diseases Board - Board had not accepted liability - unsuccessful application by plaintiff for benefits - finding that renewed application would succeed - whether benefits to be deducted from damages. - DUST DISEASES - medical and other expenses payable by Board - Board had not accepted liability - unsuccessful application by plaintiff for benefits - finding that renewed application would succeed - whether benefits to be deducted from damages. - DUST DISEASES TRIBUNAL - assessment of damages - statutory power of reconsideration - Dust Diseases Tribunal Act s 13(6) - relevance to deduction of medical and other expenses - unsuccessful application by plaintiff for benefits - finding that fresh application would succeed - whether Judge entitled to deduct benefits subject to reconsideration if fresh application unsuccessful.

Civil Liability Act 2002 (NSW) Coal Mines Regulation Act 1982 Dust Diseases Tribunal Act 1989 (NSW) LEGISLATION CITED: Workers Compensation Act 1926 (NSW), ss 63 and 64 Workers Compensation Act 1987 (NSW), s 151Z Workers' Compensation (Dust Diseases) Act 1942 (NSW), s 8 Workers' Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998, Schedule 6(13)

Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 Birdon Marine Pty Ltd v Jepp [2009] NSWCA 147 Bradburn v Great Western Railway Co (1874) LR 10 Ex 1 Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 Commercial Minerals Pty Ltd v Hollins [1993] NSWCA 74 Coonara Superannuation Services Pty Ltd v Simons [2000] FCA 1369 CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223 CSR Ltd v D'Arcy (1996) 40 NSWLR 721 CSR Ltd v Eddy [2005] HCA 64, 226 CLR 1 Dudley v Condell Park Carrying Co Pty Ltd (1988) 4 NSWCCR 58, Haines v Bendall (1991) 172 CLR 60 Harris v Commercial Minerals Ltd (1996) 186 CLR 1 Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 CASES CITED: Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60 James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729 John Downes v Amaca Pty Ltd [2008] NSWDDT 25 Johnson v Perez (1988) 166 CLR 351 Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Manser v Spry [1994] HCA 50; 181 CLR 428 Parry v Cleaver [1970] AC 1 Payne v Railway Executive [1952] 1 KB 26 Redding v Lee (1983) 151 CLR 117 Smoker v London Fire and Civil Defence Authority [1991] 2 AC 502 The National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 Tipper v Williams [1993] NSWCA 269 Vanramer Pty Ltd v Higgins (1991) 24 NSWLR 661

PARTIES: John Downes - Appellant AMACA Pty Limited (formerly James Hardie & Coy Pty Limited) - Respondent

COUNSEL: G Little SC and S Tzouganatos - Appellant G Watson SC and J Sheller - Respondent

SOLICITORS: Turner Freeman - Appellant DLA Phillips Fox - Respondent

LOWER COURT JURISDICTION: Dust Diseases Tribunal of NSW

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40456/08

BASTEN JA CAMPBELL JA HANDLEY AJA

Thursday 15 April 2010 JOHN DOWNES v AMACA PTY LIMITED CATCHWORDS

DAMAGES - medical and other expenses payable by Dust Diseases Board - Board had not accepted liability - unsuccessful application by plaintiff for benefits - finding that renewed application would succeed - whether benefits to be deducted from damages.

DUST DISEASES - medical and other expenses payable by Board - Board had not accepted liability - unsuccessful application by plaintiff for benefits - finding that renewed application would succeed - whether benefits to be deducted from damages.

DUST DISEASES TRIBUNAL - assessment of damages - statutory power of reconsideration - Dust Diseases Tribunal Act s 13(6) - relevance to deduction of medical and other expenses - unsuccessful application by plaintiff for benefits - finding that fresh application would succeed - whether Judge entitled to deduct benefits subject to reconsideration if fresh application unsuccessful. HEADNOTE

The plaintiff, who was suffering from asbestosis, brought proceedings in the Dust Diseases Tribunal against the company which had supplied asbestos to his employer to recover damages. The plaintiff had applied for benefits under the Workers Compensation (Dust Diseases) Act 1942 but his application was rejected because the Medical Authority found that he was not yet disabled by the disease. The Judge assessed the plaintiff's damages at $311,743.05. He found that the plaintiff was disabled by his disease and that if he applied again to the Board it would accept liability and would pay his expenses.

The Judge therefore deducted the sum of $156,443.05 which he had provisionally allowed for past and future medical and other expenses from the plaintiff's damages and entered judgment for the net amount. Under s 8E of the 1942 Act, introduced in 1998, the amount deducted from the plaintiff's damages for past and future expenses paid or payable by the Board notwithstanding the recovery of damages was a debt payable by the defendant to the Board. The Judge held that if the Board did not accept liability for the expenses the plaintiff could apply under s 13(6) of the Dust Diseases Tribunal Act for the award to be reconsidered. On appeal by the plaintiff HELD : The appeal would be allowed and the proceedings remitted to the Tribunal to determine whether the amount assessed for past and future expenses or some other amount should be deducted from the damages assessed (1) per Basten JA ([54]-[55]) because the Tribunal had not considered whether, if the plaintiff did not reapply to the Board, his failure to do so would be an unreasonable failure to mitigate his loss, and in assessing the amount to be deducted it had not properly considered the contingencies involved; (2) per Campbell JA because ([116]-[117]) the expenses could only be deducted if the plaintiff was likely to apply to the Board and would obtain them or if his failure to do so would be an unreasonable failure to mitigate his damages; (3) per Handley AJA because the Judge had not fully exposed his findings of fact and his reasons for deducting the expenses ([151]-[154]). ORDERS

(2) Judgment of the Dust Diseases Tribunal set aside except as to costs;

(3) Proceedings remitted to the Tribunal for the purpose of determining whether the assessed amount of $156,443.05 for the plaintiff's past and future expenses or some other amount should be deducted from his damages assessed at $311,743.05;

(4) Subject to s 13(6) of the Tribunal Act the rehearing of the proceedings is limited to the issue so remitted;

(5) Respondent to pay the appellant's costs of the appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40456/08

BASTEN JA CAMPBELL JA HANDLEY AJA

Thursday 15 April 2010 JOHN DOWNES v AMACA PTY LIMITED Judgment 1 BASTEN JA: The appellant brought proceedings against the respondent in the Dust Diseases Tribunal, claiming that he suffered from asbestosis resulting from exposure to asbestos dust in circumstances creating liability in the respondent (which had not been his employer). The only contentious issues were whether the appellant in fact suffered from asbestosis and, if so, the quantum of his damages. The Tribunal (Curtis DCJ) held that the appellant suffered from a disease contributed to by his exposure to asbestos and assessed damages accordingly: John Downes v Amaca Pty Ltd [2008] NSWDDT 25. 2 The present appeal is brought from the assessment of the appellant's loss. Two issues are raised, namely whether his Honour's decisions -

(a) to reduce the amount of the judgment by excluding the cost of past and future medical expenses and future care, and (b) in refusing to allow the expenses incurred because the appellant would no longer be able to care for his ailing wife,

were erroneous decisions in point of law. 3 The issues have been phrased in this way so as to reflect s 32(1) of the Dust Diseases Tribunal Act 1989 (NSW), pursuant to which the appeal was brought to this Court. The jurisdiction of the Court is engaged, relevantly for present purposes, with respect to "a decision of the Tribunal in point of law".

Deduction of expenses 4 The Tribunal noted that, where the medical authority certifies that a person is totally or partially disabled for work from a dust disease, the Workers' Compensation (Dust Diseases) Board ("the Board"), must pay benefits to the person in accordance with s 8 of the Workers' Compensation (Dust Diseases) Act 1942 (NSW) ("the Dust Diseases Act"). The Tribunal noted that the appellant had applied to the Board for benefits in 2007 but that the medical authority had certified that at that time he had not contracted a dust disease within the meaning of the Act: at [38]. However, at [40] his Honour stated: I think it probable that if Mr Downes reapplies to the Dust Diseases Board he will be certified as disabled and entitled to receive the prescribed benefits." 5 Based on that finding, his Honour continued at [41]: "In the circumstances I believe it appropriate to award damages based on this probability, deducting from his award of damages the cost of past medical treatment and the present value of future medical expenses and domestic assistance." 6 It is reasonably clear that the last statement involved a decision in point of law, a characterisation with which the respondent did not take issue. Accordingly, the appellant is entitled to challenge the correctness of that decision on the appeal. 7 The entitlement to damages in the present case arose under the general law; the entitlement to payment of benefits from a statutory fund arose under the Dust Diseases Act. Where a person has an entitlement to both, questions will arise as to whether recovery of both involves double compensation, whether when damages are recovered, an obligation to refund the compensation payments arises or whether the damages are to be reduced by the amount of the compensation receivable. 8 In Manser v Spry [1994] HCA 50; 181 CLR 428, the High Court had held (in relation to similar legislation in South Australia) that a deduction should be made on the basis that (at 439): "The compensation benefits paid or payable under the Act are ordinary incidents of a worker's employment which must be taken into account in assessing the damages of a plaintiff-employee for loss and damage for which a tortfeasor is liable at common law." 9 For that reason, in Manser the Court held that the plaintiff was not entitled "both to receive and retain compensation by way of weekly payments … and to recover damages in the common law action assessed without reduction on account of compensation received or to be received": at 432. The conclusion in Manser does not directly apply in this case, as in Manser the authority responsible for paying compensation had no right to obtain recoupment from an award of damages. Section 8E (discussed below) has expressly varied that situation. 10 It was authoritatively established in Harris v Commercial Minerals Ltd [1996] HCA 49; 186 CLR 1, in relation to the Dust Diseases Act, applying principles enunciated in Manser at 434-437, that double recovery was not permitted and, to avoid that result, that benefits payable as compensation for economic loss suffered as a result of work injuries falling within the scope of the Act, were to be deducted from any award of damages against an employer in respect of those injuries: at 18. In that case, the present value of the future benefits payable under the Dust Diseases Act was held to be deductible from the damages: at 16. 11 Harris is distinguishable in two respects from the present case. First, it was a case in which the worker's entitlement had already been accepted by the Board prior to the judgment for damages. The trial judge in Harris had deducted amounts already paid, so that the only issue related to future benefits payable pursuant to an entitlement which had been accepted by the body responsible for making the payments. 12 A somewhat different issue arises in respect of cases where no such entitlement has been made out at the date of judgment in the damages proceedings. That issue arose shortly after the judgment delivered in the High Court in Harris in the matter of CSR Ltd v D'Arcy (1996) 40 NSWLR 721. The issue, as identified by Cole JA, concerned the inclusion by the Tribunal in an award of damages of an amount on account for future medical expenses. His Honour identified the circumstances in the following terms at 722E: "The respondent undoubtedly has an entitlement to receive such future medical expenses from the Dust Diseases Board were he to apply for them by application under the [ Dust Diseases Act ]. His Honour declined to make the reduction because the respondent, who is now aged 86 years and with a life expectancy found to be in the vicinity of twelve to eighteen months due to a form of dust induced cancer, gave evidence which the trial judge accepted, that he had not and did not intend in the future to make application for an award under the [ Dust Diseases Act ] either for compensation payments or implicitly for the medical expenses." 13 His Honour continued, identifying the two bases upon which the appellant in that case had argued in favour of the deduction at 722-723: "First, that as a matter of statutory interpretation the legislature has made clear that a person entitled to common law damages … is not entitled additionally to compensation payments under the Act, including payments for medical treatment. Thus a legislative intention is discerned that the right to or prospective right to future compensation payments is to be determined and deducted when assessing common law damages. Secondly, it is contended that the plaintiff worker suing for damages is obliged to mitigate his loss. This requires him to make application for payments under the [ Dust Diseases Act ]. If, unreasonably, he fails to do so he has failed to mitigate his loss and the sum which prospectively he might have recovered is to be taken into account as a deduction in the assessment of common law damages." 14 Cole JA determined the case on the first basis, accepting that the question had not arisen in those terms in Harris: at 724B-D. In concluding that no question of mitigation of loss arose, his Honour stated at 726B: "Rather the question is: to what damages is the injured worker entitled at common law, having regard to the discerned legislative intention that he has an entitlement to benefits under the Dust Diseases Act which are not to be received by him in addition to undiminished common law damages?" 15 As appears from the formulation of the issue last stated, there was some ambivalence in his Honour's reasoning as to whether it was the recovery of benefits or the entitlement to recover them which was critical. In either event, his Honour commenced with the premise, noted above, that the entitlement in question was "undoubted". 16 This approach revealed an ambiguity in the reasoning in Harris. On one view, the statutory intention derived from the Dust Diseases Act was that because the source of the statutory benefits was, in large part, contributions by employers, the intention was that the injured worker should not be entitled to obtain both the benefits and damages from the employer. The alternative reading was that, viewed from the perspective of the payer rather than the payee, the employer should not have to pay amounts into the fund from which the benefits were payable and pay damages in respect of the same disability, regardless of whether the injured plaintiff sought and obtained a benefit from the fund. The critical passage in the judgment in Harris read as follows (at 17): "It is difficult to conclude that Parliament intended that the employers should fund benefits paid for injuries suffered in the course of employment and at the same time have to make a payment by way of damages for those injuries. The financial source of the benefits therefore indicates that the benefits should be deductible from awards of damages in respect of injuries giving rise to the benefits." 17 Arguably, the reasoning of the High Court was limited to the latter approach, whereas the reasoning of Cole JA adopted the former approach. In any event, the majority in D'Arcy did not adopt the approach of Cole JA. The principal judgment for the majority was that of Giles AJA who concluded at 737C-E: "In favour of the legislative intention approach is (relative) certainty and avoidance of additional factual inquiry; further, on that approach, a plaintiff could not decline to apply for an award from the Board and possibly receive damages without deduction, then make an application under the Act and achieve over-compensation. But, unless more clearly expressed in the Act, it is not easy to find a legislative intention that benefits under the Act are to be a necessary and, to the extent of the compensation provided, sole source of compensation to workers suffering from dust diseases …. Workers have not been deprived of their common law rights, and they are not obliged to prosecute both a claim under the Act and, if they seek additional compensation, at common law." 18 A similar view was expressed by Abadee AJA who agreed with the reasons of Giles AJA: at 738-739. In common with other members of the Court, he accepted that "there can be no doubt that the plaintiff has a dust disease falling within the Act, and that in real practical terms an application would need only to be made by the plaintiff which would result in an award of medical and hospital benefits under the Act": at 739B. Applying the principle of mitigation, the majority concluded that the respondent had been unreasonable in failing to apply and accordingly the appeal was allowed, with the result that the sum for future benefits was deducted. 19 All three members of the Court noted that, in assessing the quantum of any future benefits for which application had not been made, it would be appropriate to apply the principles as to future hypothetical events, explained in Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638: at 725F (Cole JA); and at 733D (Giles and Abadee AJJA agreeing). The fact that the full amount of the assessed future benefits was deducted no doubt indicated the satisfaction of the Court that there was no possibility of an application, if made, being rejected. 20 A year later, a further matter raised similar issues in this Court: James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729. In that case one question was whether the principle identified in Harris applied in respect of a pension payable for economic loss when, in the damages claim, no amount was sought on account of past or future earnings or earning capacity. The distinction was rejected on the basis that there was but one claim for common law damages and it was not appropriate to require that the heads of damage be set off against similar heads of compensation: at 731C (Handley JA) and at 736-737 (Stein JA, Cole JA agreeing at 733A). 21 A second question, of present relevance, concerned a claim for damages for domestic care of the injured worker. The Tribunal included in its award of damages an amount with respect to domestic care services. The appellant argued that such benefits were covered by the statutory compensation scheme and should therefore not have been allowed. This argument was rejected on the basis that home care had not been "directed by a medical practitioner", as was required to found an entitlement under the statutory scheme. It appears that the appellant argued both that such a direction may have been made in the future and that the injured worker was remiss in not obtaining a direction which would have been available without difficulty: at 738. Although the reasoning is not entirely clear, these submissions appear to have been rejected on the basis that the conduct of the respondent had not been shown to be unreasonable by the appellant, which bore the onus of proof on mitigation: at 739. In his brief concurring judgment, Cole JA noted that nothing which he had said in D'Arcy "obliged the respondent to appeal from the Board's refusal to award his claim" for domestic care benefits. 22 The principles which are to be derived from D'Arcy and Newton are not beyond doubt, but appear to include the following:

(1) where a person has a clear entitlement to a benefit under the Dust Diseases Act , his failure to obtain the benefit must be assessed in terms of mitigation of loss, the onus being on the respondent to establish that the claimant's conduct in not seeking the benefit was unreasonable; and

(2) where the entitlement to the benefit has not been accepted by the Board, the possibility that a benefit will be payable in the future must be assessed on the basis that it is an hypothetical event, in accordance with Malec principles. 23 The Tribunal did not adopt either of those mandatory approaches in the present case. 24 Before turning to the second basis for distinguishing Harris, it may be noted that the issue of future benefits, absent a recognized existing entitlement, had not arisen in any of the reported cases pre-dating Harris, although the principle against double recovery had. In Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 at 129G, Sugerman JA stated that "the correct method of preventing a double recovery here is by taking into account the payment received or to be received under the Act as a factor in assessing damages." That was said in the context of a recognized existing entitlement, where evidence of payments made had been rejected, erroneously as this Court held. 25 The passage in Ascot Iron quoted above was referred to by Clarke JA in Tipper v Williams [1993] NSWCA 269 (URJ) at 6, where the principle was accepted and applied. The required deduction for future compensation payments arose however, in relation to a "continuing" entitlement: at 6-7. There is a clear distinction to be drawn between future payments to be made pursuant to a recognized entitlement and those which may be made pursuant to an as yet entirely hypothetical entitlement. (Tipper v Williams (No 2) [1994] NSWCA 312 (URJ) concerned the reassessment of the quantum of the award in light of the first decision, and did not address the issue of principle.) 26 The lack of authority with respect to hypothetical future entitlements may not be entirely surprising: workers obtaining a judgment for damages under the Dust Diseases Act will usually have an existing determination of entitlement to compensation benefits. 27 The second basis for distinguishing Harris is that the respondent in those proceedings was the employer of the claimant. Accordingly, whichever of the readings suggested at [16] above is the correct basis from which the statutory intention is to be derived, in each case it concerned actual or potential payments by the employer twice over for the same worker. In the present case, the respondent was not the employer of the claimant. Further, whether or not the respondent had made a payment to the fund from which benefits are provided is beside the point: under s 8E of the Dust Diseases Act (which was not in issue in Harris, D'Arcy or Newton) the compensation payable by way of medical expenses will be paid by the respondent in any event, the only question being whether it will be paid to the Board or to the appellant directly. 28 It is therefore apparent that the early authorities provide the principled basis to address the question which arises in the present case, but do not provide the answer. The question is whether, in point of law, the Tribunal was required or permitted to reduce the otherwise appropriate assessment of damages on account of the present value of future benefits which might become payable by the Board, if an application were made to it and if the application were granted.

Effect of s 8E 29 Since the decision in Harris, the Dust Diseases Act has been amended to insert s 8E in its present form, as set out by Handley AJA at [131]. The effect of the amendment (relevantly for present purposes) is to provide for payment to the Board of any amount deducted on account of "compensation already paid" under the Act and "the present value of future benefits payable" under the Act: s 8E(3)(b). 30 The provision only operates with respect to a "second person" who is not the worker's employer: s 8E(3)(a) and (5)(b). The section also permits the Board to seek indemnity from the third party tortfeasor in circumstances where the claimant does not bring proceedings: s 8E(4). The indemnity is limited to the amount of compensation actually paid, no doubt being a separate indemnity which arises upon each payment being made. The amount of the indemnity is limited to the liability to pay damages for economic loss: s 8E(4)(d). Where the third party tortfeasor has a right of contribution from the employer, it is not entitled to recover contribution towards the amount payable to the Board from the employer, but its liability to the Board is proportionately reduced: s 8E(6)(c) and (d). 31 Section 8E does not require or permit a deduction from the damages payable under the general law; rather, it assumes the possibility of such a deduction.

Application of principle 32 There are two factors which favour the conclusion that a deduction was appropriate in the present case. First, were the appellant to apply for benefits under the Dust Diseases Act (contrary to his present intentions) the Board, once it accepted that he fell within the statutory criteria in s 8(1) would be obliged to make payments of compensation. He would then have obtained double recovery. Secondly, if the deduction were not made from the damages, the statutory rights of the Board either to recover from such damages or, in the absence of proceedings for damages, to obtain an indemnity from the respondent, would be lost. As a result, not only would the appellant obtain double recovery, but the Board would lose its right to recoupment. 33 There are, however, considerations which support a different conclusion, namely that no deduction is required. First, where the Board has declined to grant an application for compensation, no entitlement being extant at the date of the judgment for damages, the Board is placed in a position analogous to approbating and reprobating. Pursuant to s 8E(3), it would have a statutory right to a payment designed to recoup a liability which it does not acknowledge. 34 Secondly, the amount of the deduction is likely to become somewhat arbitrary. If the principles in Malec apply, as appears to be the case, the deduction may be less than the present value of future payments, to allow for the contingency that no compensation will be paid in the future, or that the entitlement will be delayed. This arbitrariness is reinforced by the fact that neither the medical authority nor the Board (which are responsible for separate elements in the process of determining eligibility for compensation) will be bound by the decision of the Tribunal. Furthermore, the right of appeal which the appellant might have from a decision of the Board or the medical authority goes not to the Tribunal but to the District Court: s 8I(1). (No doubt the Tribunal and the Court could be constituted by the same judicial officer in each case, but that would not necessarily happen.) However, this consideration is of little significance: any available solution to the problem of double recovery is liable to be arbitrary to some extent. 35 Thirdly, there are textual indications that recoupment under s 8E does not extend to entitlements which have not yet arisen. Thus, it is significant that s 8E(3) refers to the present value of future benefits "payable" to the claimant. Payable is, of course, a word which is likely to take its meaning from its context. Nevertheless, it does not usually include an entitlement which may arise in the future, as opposed to an existing entitlement to future payment: see, eg, Coonara Superannuation Services Pty Ltd v Simons [2000] FCA 1369 at [15]-[19] (Whitlam J). 36 Fourthly, there are textual indications in s 8E(8) and Sch 1A, which deal with the situation where the amount of the deduction "is not apparent or readily ascertainable from the terms of any judgment or award in respect of the damages". In that circumstance, the amount of the deduction is to be determined in accordance with Sch 1A. Pursuant to cl 4 of that Schedule, the amount of compensation is to be identified as the amounts paid up to determination of the proceedings and (sub-cl (a)(ii)): "the present value of future benefits payable by the board to, or on behalf of, the [claimant] after that date (where the assessment of those future benefits is based on the assumption that the medical condition of the worker as to disablement and life expectancy will remain unchanged)." 37 That language is consistent with an assessment based on present entitlement, but not with an entitlement arising in the future based on a deterioration in the claimant's condition, or the contraction in the future of a relevant dust disease. If this construction of s 8E be correct, any deduction made to account for such a future entitlement would not be payable to the Board, with the result that, contrary to the clear statutory intention, the third party tortfeasor would escape liability for the loss, as it would have to pay neither the claimant nor the Board. 38 Fifthly, the operation of the legislation is conditioned on a right to damages for future economic loss, medical expenses and domestic assistance. Where an alternative statutory scheme is provided, it may readily be accepted that the claimant is not entitled to double recovery. However, a statutory intention to deprive him or her of rights to damages under the general law and require that benefits be obtained under the statutory compensation scheme should not too readily be inferred in the absence of express language or any necessary implication to that effect. It is to be recalled that it is only the claimant's rights which are at stake. In the circumstances of the case, no payment is sought from the employer directly, nor from the statutory scheme to which the employer contributed. Nor can the employer be liable to contribute to the payment sought from the third party tortfeasor. The tortfeasor, on the other hand, will pay the relevant amount in any event, either to the Board pursuant to s 8E of the Act, or to the claimant pursuant to a judgment for damages. 39 The claimant, on the other hand, is sought to be deprived of an immediate entitlement to the amount in an award of damages, so as to be left with an entitlement to seek payment of compensation under a statutory scheme, requiring separate proof of eligibility and the possibility of the need to exercise appeal rights together with, in respect of domestic assistance, the need to obtain a direction from a medical practitioner before the entitlement arises. 40 It is not necessary in this discourse to reach for some outdated principle of statutory construction involving a presumption against an intention to alter, diminish or abolish common law rights: see Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at [2]-[11] (Spigelman CJ, Beazley JA agreeing) and at [209]-[219]. However, the respondent's proposed construction would involve not merely a statutory variation of the common law but a statutory variation of entitlements to damages assessed under the Civil Liability Act 2002 (NSW). 41 Given the countervailing considerations, the two matters identified at [32] above provide an inadequate basis for concluding that the legislature intended to remove the right to an award of damages with respect to matters to which there was no extant entitlement to statutory compensation, but as to which an entitlement might arise in the future. There is no express statutory entitlement (let alone an unqualified entitlement) to make an application to the medical authority or the Board under s 8 of the Dust Diseases Act, nor to have an application accepted. It might properly be inferred that the Board was not required to accept or grant an application where the claimant had already obtained an award by way of damages with respect to the identical disablement for which a benefit was later sought under the Act.

Authorities 42 It remains to consider whether other authorities (not directly concerned with the Dust Diseases Act), required a different conclusion. A number of cases have considered the problem of double recovery of damages and compensation in circumstances where the statute did not provide a ready answer. Those cases have arisen under s 151Z of the Workers Compensation Act 1987 (NSW) and ss 63 and 64 of its predecessor, the Workers Compensation Act 1926 (NSW). One purpose of s 151Z(1) is to permit a worker to seek both compensation and damages, but not to obtain or retain both. However, the section addresses the issue only where there has been a single injury for which compensation is payable and in respect of which a third person is liable to pay damages. In cases where there are separate injuries, the section has been found not to operate. 43 Hood Constructions Pty Ltd v Nicholas (1987) 9 NSWLR 60 was not a case involving a claim under the Dust Diseases Act, but concerned an issue as to the deduction of payments under the Workers Compensation Act 1926 (NSW), in circumstances where the statutory provisions designed to avoid double payments did not, apparently through legislative inadvertence, apply. Hope JA concluded (Priestley JA agreeing) "that there should be deducted from the amount of damages awarded to the plaintiff [for the second injury] amounts equivalent to the payment of compensation made by Hood in so far as they are to be attributed to the [second] injury": at 74E. Ascot Iron was referred to, but only for the proposition that double recovery should not be permitted. It was concerned only with past payments. 44 In Hood Constructions, the second injury involved negligent medical treatment of the first injury. In Dudley v Condell Park Carrying Co Pty Ltd (1988) 4 NSWCCR 58, the situation was reversed, the compensable work injury having resulted from an earlier negligent injury caused by a car accident for which parties identified as the McKenzies were liable. As explained by Clarke JA at 64-65: "The point is that the McKenzies were legally liable to pay damages for all the adverse consequences suffered by the appellant as a result of the 1983 accident. Those damages would, in accordance with the trial judge's findings of fact and if the occasion had arise[n], have been assessed having regard to the later fracture in 1984. But that does not detract from the fact that the circumstances of the 1983 accident created a legal liability in the McKenzies to pay damages in respect of the injury suffered by the appellant in 1983 and all their consequences including the 1984 fracture. Their liability to pay those damages in respect of the 1983 accident was complete long before the occurrence of the fracture in 1984. Its occurrence did not alter their legal liability to the appellant. It simply meant that, in the assessment of one area of the damages payable, a fact (ie the fracture) replaced a possibility or risk." 45 The result in Dudley was that the plaintiff (appellant) was not precluded by the statutory scheme from claiming compensation in respect of the later injury, nor was there any "double counting" because, in assessing damages for the first injury, the Court held that the trial judge was entitled (and perhaps required) to take account not only of the risk of a further fracture, but also "compensation payments paid in respect of a second injury which 'resulted from' the first injury", citing both Ascot Iron and Hood Constructions: at 66D. 46 Whether or not the explanation is satisfactory as a practical matter, Dudley applied the principle that an award of damages is required to be assessed on a basis which avoids the possibility of double compensation but allows for future payments of compensation. A similar approach was accepted by this Court in Vanramer Pty Ltd v Higgins (1991) 24 NSWLR 661 and in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492. In Thackham, the plaintiff was a worker who had suffered two injuries with separate employers, the first in 1981 and the second in 1988. Both gave rise to rights to compensation, but only the first gave rise to an entitlement to recover damages. The worker successfully recovered damages from the first employer in respect of both injuries. It was not in doubt that the plaintiff (respondent) was required to account for the compensation which had been paid. The question was whether the damages should be reduced further on account of the present value of future payments of compensation, in circumstances where his right to continuing payments was not terminated by the legislation. The Court held that there should be a further reduction. Referring to the arguments of counsel for the respondent, Handley JA stated at 509: "Mr Deakin invites the Court to give effect to parliament's intention not by adjusting the damages in the case before it but by terminating the worker's right to further compensation from the second employer who is not before it. The Act confers no power on the Court to deal with those rights in these proceedings and in s 272 expressly forbids contracting out. The course urged on the Court by Mr Deakin is not within its powers. For the same reason the Court unanimously declined to accept an undertaking offered by Mr Deakin on behalf of the worker not to pursue claims to further compensation against the second employer." 47 Having rejected those submissions, his Honour continued: "The practical difficulties adverted to by Mr Deakin which have been recognised by this Court can be overcome in most but not all cases if a plaintiff crystallizes his or her compensation rights prior to the trial of common law proceedings by obtaining awards of any weekly or lump sum compensation. The legal advisers for a plaintiff faced with a situation such as the present should be alert to the problems, and to the solution which is readily available if the appropriate steps are taken in time." 48 The principles by which double recovery could be avoided in such circumstances, by reducing the award of damages on account of workers' compensation payments not otherwise recoverable under s 151Z, were affirmed in Birdon Marine Pty Ltd v Jepp [2009] NSWCA 147 at [15]-[17] (Allsop P, Beazley JA and Handley AJA agreeing). 49 A conclusion that s 8E and consequential amendments to the Dust Diseases Act do not apply to future compensation, as to which there was no current entitlement at the date the damages were awarded, does not necessarily conclude the matter. As noted above, the question of recoupment is separate from the question of double recovery by the plaintiff, and s 8E did not in terms address the principle against double recovery.

Conclusion - deduction for future compensation 50 The following approach should be adopted in this case. First, the principle against double recovery by a plaintiff should be accepted, in respect of future payments of compensation, as in respect of past payments. That principle operates with respect to compensation payable under the Workers Compensation Act and under the Dust Diseases Act. 51 Secondly, where there is no termination of an entitlement to payments in circumstances where damages are obtained, this Court can neither divest the plaintiff of such rights as he or she may have in respect of statutory compensation, nor accept an undertaking not to pursue such rights. The same situation inheres in the Tribunal. 52 Thirdly, where there is an acknowledged existing entitlement, the only mechanism available to avoid double recovery is to reduce the damages payable in the future by the present value of the anticipated future payments. 53 Fourthly, where there is no recognised existing entitlement to compensation payments, an alternative course for preventing double recovery would be an implied limitation on the right of the worker to claim such payments once damages have been recovered including such losses. However, the present case was not argued on that basis and, as it could give rise to issues which have not been debated, it should not be determined on that basis. 54 Fifthly, the correct approach is, therefore, to uphold the obligation of the Tribunal to reduce the damages awarded to take account of the possibility that a future entitlement to compensation payments may arise under the Act. In undertaking that assessment, the respondent had to satisfy the Tribunal that, if the appellant did not reapply for compensation, that conduct would constitute an unreasonable failure to mitigate his loss. Further, the amount of the reduction required consideration of when such an award would be made, whether and to what extent it was likely to cover past payments, the chance that the medical authority would decline certification and any other relevant contingencies. These considerations are required by the principles identified at [22] above. 55 It follows that the obligation on the Tribunal to reduce the damages sought by the appellant on account of the possibility of a future claim and a grant of statutory compensation under the Act, on the assumption that a reduction was the appropriate mechanism to avoid double recovery, was approached by the Tribunal on a doubly erroneous basis in point of law. The appeal should be allowed in respect of that ground.

Domestic assistance to wife 56 The applicant also sought, but was refused, a claim for compensation in respect of the domestic assistance which he anticipated would be required by his wife in the last year of her life, but which he would then be unable to give. As Handley AJA notes, such a claim is not available under the general law, but is available in certain circumstances pursuant to s 15B of the Civil Liability Act 2002 (NSW). One of the conditions of such a payment is that the claimant provided the services to his wife "before the time that the liability in respect of which the claim is made arose": s 15B(2)(a). 57 The Tribunal found that the appellant "presently attends to" the heavier domestic tasks formerly performed by his wife: at [30]. That did not address the temporal element required by the section, but, in the absence of a relevant factual finding, his Honour's refusal to grant the compensation sought cannot be upheld because the statutory test was otherwise not satisfied. It would not be for this Court, on an appeal of the kind presently before it, to determine either the time at which the liability arose or the services provided by the appellant to his wife at that time. However, that finding was not the matter now challenged by the appellant. That part of the claim was rejected because the services in question would otherwise be the subject of compensation based on the appellant's own need for domestic assistance. The same assistance could not be recovered twice. 58 The complainant's argument was rather that the Tribunal failed to consider "that the claim under this head was made on the basis of personal care and assistance (gratuitous domestic services) over and above what the appellant was currently performing … and not on the basis of nursing or medical attention": submissions, par 38. The services identified included "dressing, toileting, transporting, feeding and such matters": submissions, par 39. 59 This Court was taken to the evidence before the Tribunal and the submissions made on behalf of the appellant before the Tribunal. However, it does not appear that the Tribunal was invited to approach the matter on the basis now put forward. If it had been, a question as to the operation of s 15B(2)(a) would have arisen. The fact that the Tribunal did not address the question tends to confirm the conclusion that it was not raised. Accordingly the appellant must fail on this separate ground of appeal.

Conclusions 60 I doubt that it is necessary to set aside the judgment below to allow the Tribunal to determine whether it should be increased by the amount of the deduction (or part thereof) identified by the Tribunal in its reasons at [41]. Nevertheless, as it is clear that the appellant is entitled to retain the amount of that judgment, I am content to adopt the form of orders proposed by Handley AJA. 61 CAMPBELL JA: I have had the advantage of reading draft judgments of Basten JA and Handley AJA. The process of discussion between members of the bench since judgment was reserved has led me to state my own reasons. 62 The Appellant developed an asbestos-related disease as a result of handling, in the course of his employment, asbestos impregnated hessian bags. Those bags were supplied to his employer by the Respondent. The Respondent's liability was not in issue.

The Decision Below 63 The first step in the judge's reasoning, in calculating the quantum of damages, was to ascertain the full extent of the damages to which the Appellant would have been entitled if the Respondent had been the only cause of the Appellant's disease, and if the damages payable by the Respondent were the only source to which he could look for compensation for the consequences of having sustained that disease. On that basis, the judge assessed the damages as $311,743.05, made up as follows: "General damages $150,000 Interest on general damages $1800 Loss of expectation of life $3500 Past out-of-pocket expenses $17,405.05 Future medical expenses $57,885 Future care and services $81,153 Total $311,743.05 64 It was at the stage of calculating the quantum of the damages to which the Appellant would have been entitled had the Respondent been the sole cause of the disease and the only source to which the Appellant could look for compensation of any kind for the consequences of the disease that the judge considered, and rejected, a claim for damages analogous to those that had been awarded in Sullivan v Gordon. The totality of his reasoning on that topic (at [30]-[32]) was: "Mr Downes' wife suffers from severe emphysema and has a life expectancy of about three to four years. Mr Downes presently attends to the heavier domestic tasks formerly performed by his wife. As his disease progresses he will be unable to provide this assistance. A claim is made for the cost of providing attendant care and assistance to Mrs Downes for eight hours each day during the last year of her life. Provision has already been allowed for the cost of providing domestic services to Mr Downes when he becomes incapable of performing those services for himself. The allowance of seven hours each week in respect of the provision of these services, (gardening, cleaning, and laundry) is sufficient to provide common services to the household. Mr Downes does not have the training, experience or skill to provide nursing and medical attention which Mrs Downes will ultimately require. I award no damages under this heading." 65 After assessing the damages at $311,743.05, the judge went on to make two adjustments to that figure. The first was an adjustment that arose from the facts that the Appellant had been exposed to asbestos dust and fibre in another employment, and that that exposure had contributed to his disease. On the basis of the extent to which the Appellant had been exposed to asbestos in his two different employments, the judge held that his damage should be apportioned 85% to the Respondent. 66 Second, the judge considered how the calculation he had performed should be adjusted, to take account of an argument that the damages payable by the Respondent were not the only source to which the Appellant could look for compensation for the consequences of his disease. At the time of the judgment (1 October 2008) the Appellant had not received any payment from the Dust Diseases Board. Indeed, in 2007 he had applied to the Dust Diseases Board for benefits, but a medical authority then certified that he had not contracted a dust disease within the meaning of the Act. The judge then held (at [40]-[42]): "I think it probable that if Mr Downes reapplies to the Dust Diseases Board he will be certified as disabled and entitled to receive the prescribed benefits. In the circumstances I believe it appropriate to award damages based on this probability, deducting from his award of damages the cost of past medical treatment and the present value of future medical expenses and domestic assistance. Mr Watson SC for Amaca has undertaken that, should the Dust Diseases Board refuse the further application, Amaca will not oppose an application for reconsideration pursuant to s13(6) of the Dust Diseases Tribunal Act 1989 pursuant to which the award of damages will be increased to accord with my findings as to the cost of medical treatment, care and domestic services." 67 In light of those findings, the judge deducted from the damages he had calculated, the amounts he had included for past and future medical expenses, and future care and services. Those amounts total $156,443.05. He assessed the plaintiff's damages in the sum of $155,300. The amount of the judgment awarded was 85% of that sum, namely $132,005.

Relevant Legislation 68 The Workers' Compensation (Dust Diseases) Act 1942 ("the Dust Act") establishes a Workers' Compensation (Dust Diseases) Board (section 5), and a Workers' Compensation (Dust Diseases) Fund (section 6). Under section 6(1), the Fund is comprised of certain amounts that in years past stood to the credit of funds established under now-repealed legislation that provided benefits to workers suffering dust diseases (amounts presumably long since expended); amounts that might be provided by Parliament for the purposes of the Fund; any fees paid to the Board for contracting out its services and facilities; and money paid to the Board as contributions by insurers pursuant to section 6. 69 Section 6 makes provision for the WorkCover Authority in effect to levy insurers to raise a sum of money that, when added to any money that is provided by Parliament for the purpose of the Fund, is estimated to equal the amount that will be expended from the Fund in the following year. Section 6 makes provision for the Fund to bear the costs of all compensation that is payable under the Dust Act, and various types of expenses associated with the administration of the Dust Act or the existence of dust diseases. 70 Section 7 provides for the appointment of a medical authority. 71 Section 8(1)(a) provides that a person shall be "entitled to an award from the board, and to receive compensation at the prescribed rates from the Fund", if two preconditions are met. The first of those is that: "… the medical authority certifies that the person is totally or partially disabled for work from a dust disease and that the person's disablement 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." 72 The second 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 disablement 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 …" 73 Section 8(2)(d) identifies one of the rates of compensation that is payable as: "where medical or related treatment or hospital treatment or occupational rehabilitation service or ambulance service becomes reasonably necessary as a result of the dust disease - the benefits prescribed by Division 3 of Part 3 of the Principal Act."

The "Principal Act" there referred to is the Workers' Compensation Act 1987 : section 1(1) Dust Act . 74 Division 3 of Part 3 of the Workers' Compensation Act 1987 runs from section 59 to section 64A. Section 59 defines "medical or related treatment" as including: "(f) care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity, (f1) domestic assistance services" 75 Section 8E of the Dust Act, so far as is relevant, is set out in the judgment of Handley AJA at para [131] below. Section 13(6) of the Dust Diseases Tribunal Act 1989 is set out in the judgment of Handley AJA at para [146] below. 76 Section 151Z(1) Workers' Compensation Act 1987 provides: "If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: … (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation" 77 There is no precisely analogous section under legislation governing payments under the Dust Act. However, section 12D Dust Diseases Tribunal Act 1989 provides: "(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." 78 No express provision of the legislation says whether the Tribunal is, or is not, to make a deduction for any amount of compensation paid or payable under the Dust Act when it is determining damages other than for non-economic loss. The deductions that the judge made in the present case, for past and future medical expenses, and future care and services, do not fall within the definition in section 12D of "damages for non-economic loss".

Principles Governing Deduction of Benefits Recoverable 79 The issue in the present appeal about whether the judge was right to deduct from the damages the amount he assessed for past and future medical expenses and future care is in some respects similar to, but in other respects significantly different to, a recurring type of problem in the assessment of damages for personal injury. I will outline that recurring type of problem first, before turning to the specific problem that arises in the present case. 80 The fundamental object of an award of damages for tort is to provide: "… that sum of money which will put the party who has been injured … in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation": Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39 per Lord Blackburn

(See also Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191 per Taylor and Owen JJ; Johnson v Perez (1988) 166 CLR 351 at 355 per Mason CJ, 367 per Wilson, Toohey and Gaudron JJ, 386 per Dawson J; Haines v Bendall (1991) 172 CLR 60 at 63 per Mason CJ, Dawson, Toohey and Gaudron JJ; Manser v Spry at 434 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ.) 81 Frequently, a person who has been injured either actually receives, or will receive, from someone other than the tortfeasor who has caused the injury, payments or services that compensate for or ameliorate to some extent the consequences of the injury. Those payments or services might be provided pursuant to a contract that the injured person had entered, such as a contract of insurance. They might be provided pursuant to a statutory scheme for the provision of social security benefits to the population at large, such as an invalid pension for blindness (The National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569), or unemployment benefits (Redding v Lee (1983) 151 CLR 117). It might be that the benefits or services that are paid or provided under a statutory scheme that is designed to assist some particular section of the public concerning the consequences of personal injury, like workers' compensation legislation (Manser v Spry [1994] HCA 50; (1994) 181 CLR 428) or the Dust Act itself (CSR Ltd v D'arcy (1996) 40 NSWLR 721; James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729). The benefit or service might be provided as a matter of affection or family loyalty. It might be provided as a matter of charity. 82 There is a fairly obvious unfairness about benefits provided as a matter of charity, affection or family loyalty being deducted from damages, and the existence of a right of subrogation concerning benefits under at least some contracts of insurance provides one reason (though not necessarily the fundamental reason) why it is inappropriate to take such benefits into account as reducing the damages payable by a tortfeasor. However, as Dixon CJ said in Espagne at 572, "intuitive feelings for justice seem a poor substitute for a rule antecedently known …". 83 The problem of whether the value of a benefit or service that an injured person has received or will receive is to be deducted from the damages that the tortfeasor must pay, has been held to be one of whether such a benefit "is to be regarded as mitigating" the harm that the tortfeasor has caused: Espagne at 597 per Windeyer J, with whom Fullagar J agreed (at 576) and Dixon CJ also agreed generally (at 574). When Windeyer J says that the question is whether the benefit "is to be regarded as mitigating" the harm, he is not talking about whether the benefit as a matter of fact causes the harm suffered by the inured person to be less. Before Espagne, one way in which the law had sought to distinguish those benefits that went in reduction of a tortfeasor's damage from those that did not, was by using (expressed in different ways) the concept that if the tortious conduct was "not really the cause" of the injured person receiving the benefit, then it need not be taken into account. Sometimes this was expressed by saying that the tortious conduct was merely "the occasion" for providing the benefit and that its true cause lay in, for example, the terms of employment of the worker (eg, Payne v Railway Executive [1952] 1 KB 26). Other cases sought to make the distinction by an imprecisely expressed allusion to the nature of the connection between the receipt of the benefit and the tortious conduct, such as by saying that the advantage was "collateral", or was "res inter alios acta". Attempts to find the relevant source of difference in such notions of causation or type of connection were firmly rejected in Espagne (Dixon CJ at 572, Windeyer J at 589-597). The question of whether the advantage "is to be regarded as mitigating" the harm, is one of whether the law ought to allow the fact that that advantage has been received to reduce the wrongdoer's damages. In other words, it is another way of posing the question of how one differentiates those benefits that are to be deducted from damages from those that are not. 84 The answer that Windeyer J gave, at 598-9, was: "The most satisfying of the reasons that have been given for refusing to diminish damages because of voluntary gifts is that they are given for the benefit of the sufferer and not for the benefit of the wrongdoer. That, it may be said, cuts across the principle that damages for negligence are compensatory and not punitive. It may be that, at all events since Bradburn's Case (1874) LR 10 Ex 1, there are some limits to strictly logical applications of that principle. But I do not think the two propositions necessarily come into collision. A donor can say who is to benefit by his generosity. If, out of sympathy for a man unfortunately responsible for a motor accident, someone gives money to the victim, stating that he does so in the interest of the tortfeasor and to diminish the damages he must pay, effect must be given to his intention. If, on the other hand, the donor's expressed intention is that the injured man shall enjoy his bounty in addition to whatever rights he may have to recover damages from the tortfeasor, effect must in my opinion, be given to that intention. And if nothing be said, the intention of the giver may be inferred from the circumstances." 85 He concluded, at 599-600: "In assessing damages for personal injuries, benefits that a plaintiff has received or is to receive from any source other than the defendant are not to be regarded as mitigating his loss, if: (a) they were received or are to be received by him as a result of a contract he had made before the loss occurred and by the express or implied terms of that contract they were to be provided notwithstanding any rights of action he might have; or (b) they were given or promised to him by way of bounty, to the intent that he should enjoy them in addition to and not in diminution of any claim for damages. The first description covers accident insurances and also many forms of pensions and similar benefits provided by employers: in those cases it is immaterial that, by subrogation or otherwise, the contract may require a refund of moneys paid, or an adjustment of future benefits, to be made after the recovery of damages. The second description covers a variety of public charitable aid and some forms of relief given by the State as well as the produce of private benevolence. In both cases the decisive consideration is, not whether the benefit was received in consequence of, or as a result of the injury, but what was its character: and that is determined, in the one case by what under his contract the plaintiff had paid for, and in the other by the intent of the person conferring the benefit. The test is by purpose rather than by cause. Nevertheless it is not, I think possible, to enunciate an exhaustive rule for all parts of this vexed topic. And the questions that arise can never be determined in the abstract. Each must depend on the terms of the particular contract, pension scheme, charitable benefaction or statute governing the benefit conferred." 86 Dixon CJ said, at 573: "There are certain special services, aids, benefits, subventions and the like which in most communities are available to injured people. Simple examples are hospital and pharmaceutical benefits which lighten the monetary burden of illness. If the injured plaintiff has availed himself of these, he cannot establish or calculate his damages on the footing that he did not do so. On the other hand there may be advantages which accrue to the injured plaintiff, whether as a result of legislation or of contract or of benevolence, which have an additional characteristic. It may be true that they are conferred because he is intended to enjoy them in the events which have happened. Yet they have this distinguishing characteristic, namely they are conferred on him not only independently of the existence in him of a right of redress against others but so that they may be enjoyed by him although he may enforce that right: they are the product of a disposition in his favour intended for his enjoyment and not provided in relief of any liability in others fully to compensate him. This is readily seen in the case of benevolence. If a fund is raised by subscription for the benefit of a badly injured neighbour obviously this cannot operate in relief of the liability of a man who negligently caused the injury. So in a contract of accident insurance; where in the absence of special stipulation the insurer will not succeed by subrogation or otherwise to the insured's right of recourse against others in the case of injury by their negligence. But for the reason given it does not follow that the negligent parties can treat the insurance as operating in relief of their liability. It was effected by the money of the plaintiff for his own benefit in the event of an accident, a benefit both independent of and cumulative upon whatever right of redress against others might arise out of the circumstances of the accident." 87 In Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 this Court considered an employer's appeal against a jury verdict in favour of a worker who had contracted a dust disease in the course of his employment. The worker had received benefits under the then version of the Dust Act, but the judge had excluded from the jury evidence relating to the receipt and quantum of those benefits. While each of Sugerman, Walsh and Asprey JJA agreed in an order that there be a new trial limited to damages, and that the trial judge had been wrong to exclude evidence of the benefits received, they differed about the manner in which the right to benefits should be taken into account in assessing the damages. Sugerman J, at 129, noted that under the Act, provided the preconditions in section 8(1) were met "the award or rate of compensation is no mere matter of administrative discretion". He held (applying Windeyer J's test in Espagne) that the benefits "cannot … be held to be given by way of bounty to the intent that they should be enjoyed in addition to any claim for damages." He rejected the view that (applying Dixon CJ's test in Espagne at 573) "… they are conferred on him not only independently of the existence in him of a right of redress against others but so that they may be enjoyed by him although he may enforce that right". He held, at 129-30, that: "… the correct method of preventing a double recovery here is by taking into account the payment received or to be received under the Act as a factor in assessing damages … [a]nd I am of opinion that the whole of such payments must be taken into account. They are made as compensation for the worker's disablement by the disease of silicosis under stated conditions, and it appears to me to be impossible to apportion them as between different periods of deterioration or aggravation of the worker's condition." (emphasis added) 88 I adopt the précis that Handley JA gave in Commercial Minerals Pty Ltd v Hollins [1993] NSWCA 74 (unreported, but accessible in Caselaw in the 1993 archive of Court of Appeal decisions) at 6 of the Caselaw version, that in Ascot this Court: "… held that both past and future benefits under the Act should be taken into account in assessing a worker's damages. See per Sugerman JA at 127G and 129G, per Walsh JA at 137D and 138D-E, and per Asprey JA at 141A." 89 Asprey JA, at 140-1 of Ascot, said: "In my opinion, payments received by a worker by way of compensation in pursuance of an award made under the Act are not a bounty. If a worker is able to demonstrate that he is qualified in accordance with the provisions of the Act for an award, he is entitled to receive compensation at the prescribed rates. The fact that the worker requires the certification of the medical authority that his disablement was due to the disease defined in s 3 as well as the finding of the committee that he was a worker engaged in the occupation which the Act covers is no ground for arguing that the Act does not create an enforceable right to the benefits which it provides; nor does the fact that the nature of the disease makes it difficult to define with precision the date of its onset provide a satisfactory ground for such an argument." 90 It is important that in Ascot the worker was already receiving benefits under the Dust Act at the time of his trial. Thus he had already gone through the assessment process, and hence one could conclude that he would in fact receive benefits under the Act in the future. What the court held in Ascot was that the benefits that he would in fact receive in future were deductible from his damages. The references that the judges there made to the benefits being receivable as of right, not as a matter of discretion, were directed to the question posed in Espagne, of whether there was a legislative intention that benefits that in fact lessened a worker's loss from an injury should be kept in addition to the damages. 91 In Manser v Spry, at 436, the joint judgment, after citation from Espagne, said: "To ascertain whether a statutory benefit possesses the 'distinguishing characteristic' that it is to be enjoyed independently of, and cumulatively upon, the right to damages, the court must endeavour to discover the intention of the legislature." 92 Their Honours then identified: "…three possible indicia of a relevant legislative intention: the financial source of the benefit, the presence of a provision which requires a repayment of a statutory benefit out of the damages awarded or paid and the nature of the benefit." 93 There is no provision in the Dust Act or any connected legislation that provides for benefits to cease, or for the worker to repay any of the benefits received in the past, if the worker receives an award of damages. Thus, the second of those "possible indicia" was not present in this case. 94 Their Honours explained what they meant by the first of the indicia at 436, saying: "If a scheme for provision of a benefit be funded by contributions made by employers and employee-beneficiaries as a kind of insurance against misfortune, the principle in Bradburn v Great Western Railway Co (1874) LR 10 Ex 1 indicates that the benefit is to be enjoyed by a beneficiary who encounters the misfortune without reduction of the damages to which he or she is otherwise entitled. That view has been taken of benefits paid under contributory pension schemes created under statute: Parry v Cleaver [1970] AC 1; Smoker v London Fire and Civil Defence Authority [1991] 2 AC 502; and see Redding v Lee (1983) 151 CLR at p 138." 95 Their Honours explained what they meant by the third of the indicia at 436-7 by saying: "Whether an implication of such a legislative intention should be drawn depends largely on the nature of the benefit. Gibbs CJ said in Redding v Lee (1983) 151 CLR at p 125 'If the statute expressly provides (as some statutes relating to workers' compensation have done) that a plaintiff who has recovered damages shall repay the amount of the benefit it will be clear that the receipt of the benefit must be disregarded in the assessment. In many cases, however, the statute under which the benefit is provided will give no assistance of this kind. Then it will be necessary to consider closely the nature of the benefit itself. The conclusion that the benefit is intended for the plaintiff personally and not in reduction of the damages may more readily be drawn when it is seen that the receipt of the benefit is not dependent on the loss of wages or earning capacity ... for which the plaintiff claims damages (cf Parry v Cleaver [1970] AC at p 42, per Lord Wilberforce) and is not intended to replace the lost wages or remedy the loss of earning capacity." 96 The nature of the benefit had also been regarded as important in Espagne. The "hospital and pharmaceutical benefits which lighten the monetary burden of illness", that Dixon CJ at 573 regarded as deductible, are benefits that pay for goods and services that the plaintiff needs because he has been injured, and that the plaintiff would otherwise have to pay for. By contrast, an invalid pension for blindness is granted in the exercise of an administrative discretion, and cannot be obtained as of strict right (McTiernan J at 574-585). Unlike all other invalid pensions, the pension was not liable to be reduced if the pensioner's income exceeded a particular sum (Windeyer J at 585). 97 In Manser, the majority, at 437, approved a statement of Walsh JA from Adams, at 135, that if one has construed an Act, and if: "… one cannot find any real indications pointing one way or the other, or if one finds indications both ways which are evenly balanced, it may be that the question must then be resolved by taking the view that the dominant rule [for assessment of compensatory damages] should operate." 98 Harris v Commercial Minerals Ltd (1996) 186 CLR 1 concerned proceedings brought by a worker against his successive employers. All of those employers had exposed him to dust in the course of his employment. The High Court held that the present value of the future benefits payable to the worker under the Dust Act should have been deducted from the worker's damages. The Court reached that conclusion by applying the three criteria that Manser had identified for ascertaining the legislative intention in establishing a regime for payment of benefits to an injured person. The Court held that both the first and the third of those criteria supported the deductibility of the future benefits. 99 Concerning the source of the benefit, the Fund was one to which employees made no contribution. The principle contributor to the Fund was employers, through their payment of insurance premiums. The Court said: "It is difficult to conclude that Parliament intended that the employers should fund benefits paid for injuries suffered in the course of employment and at the same time have to make a payment by way of damages for those injuries." (at 17) 100 Their Honours also held that the nature of the benefit supported the conclusion that the benefit should be deductible. Their reasoning to that conclusion, at 18, was: "The nature of benefits conferred by the Dust Diseases Act is that of compensation for economic loss suffered as the result of work injuries falling within the scope of that Act. The benefits are a form of workers' compensation payments. Section 8 prescribes as the rates of compensation payable to a person 'totally or partially disabled for work from a dust disease' (s 8(1) of the Dust Diseases Act ) the weekly payments set out in Div 2 of Pt 3 of, and Sch 6 to, the Workers Compensation Act 1987 (NSW) (see s 1 of the Dust Diseases Act ) in respect of workers employed 'in or about a mine to which the Coal Mines Regulation Act 1982 applies' (s 8(2) of the Dust Diseases Act ). Section 8(3) specifically applies certain provisions of the Workers Compensation Act to awards under the Dust Diseases Act . Section 8(6) of the Dust Diseases Act also provides that a person who receives benefits under that Act cannot claim workers' compensation. The purpose of the payments, therefore, is 'to remedy the loss of earning capacity' of the injured worker ( Redding (1983) 151 CLR 117 at 125). That being so, the nature of the benefit enjoyed under the Dust Diseases Act does not point to a legislative intention that the benefits should not be deductible from awards of damages in respect of injuries giving rise to those benefits. Consequently, the common law courts should regard benefits under the Dust Diseases Act as compensation for injury and as a substitute or partial substitute for wages lost." 101 It appears from this passage that the High Court was dealing with only the benefits that were payable under section 8(2)(a) of the Dust Act, as it is under section 8(2)(a), in the form the Dust Act then had, that was payable "the weekly compensation payments prescribed by Division 2 of Part 3 of, and Schedule 6 to, the Principal Act in respect of workers employed in or about a mine to which the Coal Mines Regulation Act 1982 applies". The benefits payable under Division 2 of Part 3 of that Act were weekly payments, the computation of which was dependent upon the "current weekly wage rate" of the worker. Schedule 6, so far as relevant, extended that benefit to apply concerning disabilities that arose before the commencement of the Act. That explains their Honours' reference to benefits under the Dust Act being "a substitute or partial substitute for wages lost". The Dust Act at the time included section 8(2)(d), in the same terms as I have quoted at para [73] above, save only that the words "or occupation or rehabilitation service" did not appear in it. Thus the High Court's decision in Harris v Commercial Minerals may not be directly applicable to whether the cost of past medical treatment and the present value of future expenses and domestic assistance should be deductible. Even so, the nature of the benefits payable under the Dust Act under those heads is that they either reimburse the worker for expenses of that type already incurred, or save him from having to incur expenses of that type in the future. They are closely analogous to the "hospital and pharmaceutical benefits which lighten the monetary burden of illness" that Dixon CJ in Espagne held were deductible. The nature of the benefits supports them being deductible from damages. 102 In Harris v Commercial Minerals, the worker had already been medically assessed as 100% disabled (at 6). Thus he would in fact receive benefits under the Act in the future. The question that the Court was asking was, in effect, whether the legislative regime under which benefits would be paid showed an intention that the worker be able to keep the benefits in addition to his damages. 103 CSR Ltd v D'Arcy (1996) 40 NSWLR 721 related directly to whether benefits payable under the Dust Act for future medical expenses should be deducted from damages. The claim was brought by the worker not against his employer, but against a company that had supplied asbestos to his employer. It was already clear from Harris v Commercial Minerals that if the benefits had been ones that the worker had already received, or that it was clear the worker would receive in the future, the nature of the benefits, as amounts that saved the worker from spending money to make good some of the consequences of his dust disease, would be such that there was no legislative intention that they be received in addition to the amount of any damages. Thus, to give effect to the compensatory principle of damages, past benefits received, and the present value of any benefits that would be received in future, would be deductible from any damages. 104 The problem that arose in CSR v D'Arcy was different to whether the legislative intention was that benefits already received or to be received in the future, and that in fact lessened the loss that the injured worker suffered as a result of his injury, were to be kept by him in addition to damages. It arose from the fact that the worker had not sought benefits from the Board, and had indicated a firm intention that he would not seek them. As Giles AJA recorded at 738: "… had Mr D'Arcy made an application under the Act it is all but inevitable that an award would have been made for his medical and hospital expenses. The likelihood is so strong that I consider it can be treated as a certainty." 105 The first instance judge had held (as recorded at 730): "The essence of Harris is that payments under the Act had been made, were being made, and would be made in the future. No such circumstances exist in this case. There is therefore, in my view, no basis to make a deduction in respect of any payments or benefits in the past or likely to be made in the future." 106 That amounts to a finding that, notwithstanding the practical certainty of Mr D'Arcy's receiving the benefits if he were to apply, he would not in fact apply. The question that thus posed itself was whether, even so, the value of the future benefits should be deducted from the damages. It was a question about whether benefits that the worker had not received, and would not receive, should be deducted from his damages. 107 One can readily understand how a benefit that has actually been received, or that will actually be received, and that lessens part of the loss that an injured worker suffers, is deductible simply because, to the extent that the worker has received or will receive the benefit, his damage is that much less. But to reduce the damages because of a benefit that the worker has never received, and never will receive, is quite a different thing. 108 One argument considered was that there was a legislative intention that benefits that were provided for under the Act should be deducted from damages, even in the situation where those benefits had not been received, and it could not be decided that the benefits would be received in the future. A legislative intention of this kind is vastly different to the type of legislative intention that has been considered, in the line of cases that have followed Espagne. The kind of legislative intention that is relevant in Espagne and cases that have followed it concerns a situation where the benefits have been received or will be received in future, and the question is whether there is a legislative intention that benefits so received should be ones that the recipient can keep in addition to damages. If the benefit in fact lessens the harmful impact on a worker of an injury he has sustained, it is necessary to make a positive finding that there is such a legislative intention before the worker can keep the statutory benefit in addition to the damages. 109 The other argument considered was that any plaintiff has an obligation to the defendant to take reasonable steps to mitigate his damage, and Mr D'Arcy had failed to take the reasonable step of applying to the Board for the benefit that he would have received if he had only asked. When a plaintiff fails to take reasonable steps to mitigate his damage, the amount by which he would have lessened his damages, had he taken those reasonable steps, is properly deductible from his damages, despite the fact that the plaintiff has not received, and will not receive, that amount. Giles AJA observed at 732: "Finding a legislative intention that unawarded but available benefits are to be deducted from the plaintiff's damages is quite a step from finding a legislative intention that benefits received and receivable under an existing award are to be deducted. And the ultimate touchstone that a plaintiff cannot recover an amount more than he has lost suggests that what matters is benefits received or receivable, and that available benefits are not to be taken into account simply because they are available." 110 Ultimately, Giles AJA could not find such a legislative intention. He said, at 737: "But, unless more clearly expressed in the Act, it is not easy to find a legislative intention that benefits under the Act are to be a necessary and, to the extent of the compensation provided, sole source of compensation to workers suffering from dust diseases, and with the greatest of respect to Cole JA, whose reasons I have read in draft, I am unable to arrive at a statutory intention that the benefits must be availed of by workers to the extent to which they provide compensation for work related injuries. Workers have not been deprived of their common law rights, and they are not obliged to prosecute both a claim under the Act and, if they seek additional compensation, at common law. Of course, benefits received and receivable (that is, when an award has been made) must be deducted, and in most cases workers will apply for an award from the Board. Where a worker does not apply, the mitigation of loss approach will provide a suitable balance between the interests of workers and the interests of employers, since if the worker unreasonably declines to apply he will be found to have failed to mitigate his loss: so employers will be spared the kind of double payment and workers will not be over-compensated. If it is reasonable for a worker to decline to apply to the Board, it can hardly be said that there is injustice to the employer." 111 Abadee AJA agreed with Giles AJA, at 738 and 739, in preferring the mitigation of loss approach to the legislative intention approach. 112 Section 8E was added to the Dust Act by the Workers' Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998, Schedule 6(13). The amendment made by section 8E does not, in my view, incorporate into the Dust Act an intention that unawarded but available benefits are to be deducted from a plaintiff's damages. Section 8E makes provision for what is to happen if a worker recovers damages from someone other than his employer and a deduction is made from the damages for the value of future benefits payable to the worker under the Dust Act. What it does not do is to cast any light, beyond that which was available at the time of the decision of CSR v D'Arcy, on whether such a deduction from damages should be made. 113 There was no application in the present case to reargue the correctness of CSR v D'Arcy. In that situation, I do not see that the enactment of section 8E enables me to reach a different conclusion to that which was arrived at in CSR v D'Arcy about whether there is a legislative intention that benefits that would be available if asked for are to be deducted from the damages. 114 If one were designing a scheme for the provision of benefits to workers affected by a dust disease that was fair to them, and that properly allocated the burden of paying benefits amongst the people responsible for the dust disease, there may well be a lot to be said for a scheme that gave the worker an assured source of payment for whatever medical expenses might arise from the disease for the rest of his life, provided for that to be the only source from which the worker could obtain those benefits, and then allocated the costs of providing those benefits between any tortfeasor who had caused the dust disease, and, as to any shortfall, to the operators of the sector of industry in which dusty occupations occur. However, CSR v D'Arcy held that the statutory scheme established by the Dust Act did not operate in that way in 1996. I do not see section 8E as effecting any change in the statutory scheme in that respect. 115 At the time of the High Court's decisions in Harris v Commercial Minerals, and of this Court's decision in CSR v D'Arcy the Dust Diseases Tribunal Act did not contain section 12D. That provision was inserted into the legislation by the Workers' Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998. The Explanatory Memorandum said that that new section "deals with the decision in James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729." Newton held that a weekly pension that the plaintiff had received and would continue to receive under the Dust Act was deductible from common law damages in a situation where the worker made no claim for loss of past earnings or future earning capacity. In my view the introduction of section 12D does not alter the effect of CSR v D'Arcy concerning the circumstances in which benefits may be deducted from damages that are not for non-economic loss (the relevant type of damages in the present case). 116 In my view, it remains the law that if a worker has a legal right to apply for a benefit under the Dust Act, but has not applied for that benefit, the present value of that benefit can be deducted from damages only if either:

(i) there is a finding that the worker is likely to apply for the benefit and would then obtain it, or

(ii) there is a finding that the failure of the worker to apply for the benefit is, or would be, an unreasonable failure to mitigate damages. 117 In the present case the Tribunal did not proceed in either of those fashions. The finding that the Tribunal made, that if the Appellant re-applied to the Dust Diseases Board he would be certified as disabled and entitled to receive the prescribed benefits, is insufficient as a matter of law to lead to the conclusion that the benefits should be deducted, when questions of whether the worker would actually reapply, and of whether, if he did not, his failure to do so would be an unreasonable mitigation of damage, were not gone into. In my view, the matter should be remitted to the Tribunal to reconsider the extent, if any, to which a deduction should be made for past and future medical expenses and future care. 118 The capacity for workers to receive a windfall gain on this view of the law is quite limited. If the worker has not applied for a benefit at the time of seeking damages, or (as the judge in the present case thought was the Appellant's situation) has applied and been rejected, but has suffered a material deterioration in his condition since being rejected, it is for the defendant to raise an issue about whether, in the situation as it is at the time of the trial, the worker's failure to have made a recent application is an unreasonable failure to mitigate damages. It is only in the situation where such an issue is raised, and it is held that the failure to apply is reasonable, and the worker later applies for and obtains benefits, that the worker will obtain a windfall gain. The possibility of there being such a windfall gain is a consequence of the legislation that Parliament has enacted.

Domestic Assistance to Wife 119 The basis on which the Tribunal disallowed this claim was a factual finding. It was, in effect, that, while it was true that the Appellant's dust disease would make him incapable of providing certain services that he otherwise would have provided for his wife during her illness, those services were the type of services that, once provided, all members of a household benefit from. Because the Appellant would receive damages that made good his own need to have those services provided, he would suffer no extra loss as a result of his own inability to provide the self-same services to his wife. 120 I agree with Basten JA that the Tribunal was not invited to approach the matter on the basis on which the Appellant now seeks to put it forward. The Tribunal's decision concerning this head of damage was not erroneous in point of law. 121 I agree with the orders proposed by Handley AJA: 122 HANDLEY AJA: This is an appeal by the plaintiff from the judgment of Curtis J in the Dust Diseases Tribunal on 1 October 2008 who awarded damages for a dust disease caused by exposure to asbestos.

Past and future medical expenses and future care 123 The Judge assessed the plaintiff's damages at $311,743.05 which he reduced to $155,300 because his past and future medical and other expenses of $156,443.05 would be recoverable from the Dust Diseases Board (the Board). He allowed 85% of the reduced figure or $132,005 after deducting 15% for the plaintiff's exposures to asbestos from other sources. 124 The appellant challenged the deduction of the past and future expenses, and the rejection of his Sullivan v Gordon claim. 125 The appellant applied to the Board in 2007 for payment of his medical expenses claiming to be disabled by a dust disease, but the Medical Authority were not satisfied, despite his exposures, that he was already disabled by such a disease. The Board proposed to recall the appellant for a further medical examination in August 2010. The Judge found that if the appellant applied again he would probably be certified as disabled and entitled to the prescribed benefits. As a finding of fact this cannot be challenged, but the appellant challenged its legal relevance. 126 The issues of law turned on the construction of s 8E of the Workers Compensation (Dust Diseases) Act 1942 (the 1942 Act) inserted in the principal act, substantially in its present form, in 1998 and amended in minor respects in 2003. The deduction was not a windfall for the defendant because the Judge held that the amount deducted was payable to the Board under s 8E. 127 Section 8E was enacted against the background established by decisions of this Court in Adams v Ascot Iron Foundry Pty Limited (1968) 72 SR (NSW) 120, and Commercial Minerals Ltd v Hollins (22/12/93 u/rep), that past and future benefits under the 1942 Act were deductible in the assessment of common law damages. Those decisions were affirmed on that issue in Harris v Commercial Minerals Ltd [1996] HCA 49, 186 CLR 1. 128 These cases established that past and future benefits under the 1942 Act were deductible because a worker disabled by a dust disease has a legal entitlement to the benefits. In those cases the Board had accepted liability. 129 In CSR Ltd v D'Arcy (1996) 40 NSWLR 721 (D'Arcy) the worker had not applied to the Board for benefits but had a clear right to them and his failure to mitigate his loss by applying for the benefits led to his damages being reduced. The question in James Hardie & Co Pty Ltd v Newton (1997) 42 NSWLR 729 (Newton) is not directly relevant. 130 Section 151Z of the Workers Compensation Act 1987 provides for the adjustment of the burden of workers compensation payments when an injured worker recovers damages from his employer or a stranger. It also provides that his rights to future compensation terminate when damages are recovered. 131 Section 8E relevantly provides: "(1) Purpose of Section The purpose of this section is to provide the board with rights to be reimbursed for compensation paid or payable by it where damages are recovered or recoverable, being rights that correspond in certain respects to those available to an employer … under section 151Z of the Workers Compensation Act 1987. (2) Application of Section This section applies where a worker suffers disablement or death from a dust disease. (3) Reimbursement where damages recovered

If: (a) a person (the first person) recovers damages from some other person (the second person) in respect of the disablement or death pursuant to the final determination of the relevant proceedings, and (b) there is deducted from the damages the amount of any compensation already paid to the first person under this Act, or the present value of future benefits payable to the first person under this Act, or both. The following provisions have effect: (c) the second person is liable to pay to the board an amount equal to the amount or amounts so deducted, (d) the amount that the second person is liable to pay under this subsection is payable within 42 days after recovery of the damages …, (e) the amount that the second person is liable to pay under this subsection … together with interest as provided by Schedule 1A, is recoverable by the board … as a debt owing to the board." 132 The 1942 Act does not terminate a worker's right to future benefits when damages are recovered. His statutory rights are not affected, and future benefits are "deducted" from his damages at common law to prevent over compensation. 133 It was faintly argued for the appellant that, although the Judge's assessment took past and future expenses into account, the damages were the $132,005 actually awarded. Since nothing had been deducted from this amount it was said therefore that s 8E did not apply. However the High Court and this Court have consistently referred to the "deduction" of these benefits: Harris [1996] HCA 49, 186 CLR at 16, 17, 18; D'Arcy (1996) 40 NSWLR at 723, 724, 725, 726, 731, 732, 733 and 739; and Newton (1997) 42 NSWLR at 733, 734, 736, and s 8E must be construed against this background. The deduction is not made pursuant to s 8E, but at common law. The section operates on that deduction whatever it might be and however it was assessed. 134 The decision of Curtis J to deduct past and future benefits under the 1942 Act brought the deduction within s 8E(3)(a) & (b). 135 The defendant, who was not the plaintiff's employer, is the "second person" referred to in s 8E(3)(a). The section provides (s 8E(3)(c), (e)) that the second person is liable in debt to the Board for the amount deducted and must pay it within 42 days (para (d)). 136 The statutory scheme is clear. The plaintiff, despite recovering damages for his dust disease, remains entitled to benefits under the 1942 Act. If, prior to s 8E, a plaintiff's damages were reduced, the wrongdoer got the benefit, and the Board bore the expenses. Section 8E transfers this benefit from the wrongdoer to the Board which can recover the benefit as a debt. 137 If the plaintiff dies before receiving benefits equivalent to the amount deducted the savings are retained by the Board and do not pass as a windfall to the plaintiff's family. If the plaintiff lives longer than expected he will continue to receive the benefits, but the Board will at least have been reimbursed by the amount deducted. 138 Mr Little SC, who appeared for the plaintiff below and in this Court, submitted that the plaintiff had acted reasonably in an attempt to mitigate his damages. He had applied unsuccessfully to the Board for the expenses and was not bound to appeal or apply again. His refusal to do either was not unreasonable because he preferred to receive his damages in full and meet his medical expenses from his own resources rather than deal with the bureaucracy and the red tape at the Board. In Newton (1997) 42 NSWLR at 738 this Court held, on a full appeal, that a plaintiff's duty to mitigate did not require him to appeal from the Board's refusal of his application for expenses. 139 I have had the benefit of considering the reasons of Basten JA and Campbell JA in draft. Campbell JA has dealt comprehensively with the cases which have established that past and future expenses under the 1942 Act are deductible from a plaintiff's damages where the Board has accepted liability. I agree with his analysis and with his reasons up to and including para [114]. 140 The reasons given by Curtis J for deducting the plaintiff's past and future expenses from his damages were as follows: "39. The conclusion of the Medical Authority that Mr Downes was not disabled by dust disease was based in part upon a medical examination and report by Dr McEvoy. When he prepared the report Dr McEvoy was of the opinion that, although Mr Downes' lung function was below average, it was nevertheless in the normal range. He has since changed his mind. 40. I think it probable that if Mr Downes reapplies to the Dust Diseases Board he will be certified as disabled and entitled to receive the prescribed benefits. 41. In the circumstances I believe it appropriate to award damages based on this probability, deducting from his award of damages the cost of past medical treatment and the present value of future medical expenses and domestic assistance." 141 The Judge did not record findings that the plaintiff should have reapplied to the Board for an award of past and future expenses before the trial, that his failure to do so was unreasonable, and he had failed to mitigate his loss. 142 Instead he appears to have reasoned that, whatever may have been the situation before he gave judgment, his findings that Dr McEvoy had changed his mind, and that if the plaintiff reapplied to the Board he would probably become entitled to receive past and future expenses, had altered the situation. 143 Given those findings Curtis J. may have concluded that it would be unreasonable for the plaintiff not to reapply to the Board and he would fail to mitigate his loss if he did not do so. 144 These findings would not have been relevant if the Tribunal was bound to assess damages once and for all unless it also found that the plaintiff's failure to reapply to the Board before the trial had been unreasonable. 145 In this situation the Judge held that s 13(6) of the Dust Diseases Tribunal Act (the Tribunal Act) enabled him to award damages which reflected his actual reasons [140] above, creating an opportunity for the plaintiff to reapply to the Board, with the comfort of knowing that he could come back to the Tribunal to have the deduction restored if the Board rejected his renewed application. 146 Section 13(6) of the Tribunal Act provides: "Wherever appropriate, the Tribunal may reconsider any matter that it has previously dealt with, or rescind or amend any decision that the Tribunal has previously made. 147 The Judge said: "42. Mr Watson SC for Amaca has undertaken that, should the … Board refuse the further application, Amaca will not oppose an application for reconsideration pursuant to s 13(6) … pursuant to which the award of damages will be increased to accord with my findings as to the cost of medical treatment, care and domestic services." 148 An equivalent power has a long history in our Workers Compensation legislation, but the Tribunal Act made the power applicable to awards of damages for the first time. Mr Little SC referred to CSR Ltd v Bouwhuis (1991) 7 NSWCCR 223 where, on the full appeal then available from the Tribunal, Priestley JA said at p 247: "What in its context subsection (6) seems to me to do is to recognize that there may occasionally be very exceptional cases in which it becomes clear that after judgment something of a fundamental kind and of high importance to the litigation has happened, that it has happened in regard to a case which because of the nature of the Tribunal's jurisdiction needs to be dealt with the greatest available expedition and that it may be more efficient, rather than leave the supervening and basic matter to be dealt with by the appeal mechanism, to have it dealt with by the Court of first instance. On this approach it would be very rare for the power under subsection (6) to be properly exercisable by the Tribunal. The power would in my opinion only be one the Tribunal should even consider exercising … where something basic to the decision has been clearly falsified by subsequent events." 149 The falsification of the Judge's finding that a renewed application to the Board would probably be successful is capable of satisfying this test. In my judgment there would be no error of law in a decision to that effect. 150 The Judge was therefore entitled to treat the power in s 13(6) as potentially relevant to his decision to deduct these expenses. It was not argued that the power was irrelevant because s 8E(3)(a) only operates on a final determination which had not yet been reached. Nor did the argument deal with the effect of an amendment to the judgment under s 13(6) on the rights of the Board under s 8E(3)(c). 151 My analysis of the Judge's reasoning process [141]-[143] above involved reading between the lines in his actual reasons and drawing inferences which he did not express. 152 The appellant did not rely in terms on a lack of reasons, but the Judge did not find, in accordance with D'Arcy's case (1996) 40 NSWLR 721 that the plaintiff had failed in the past to mitigate his loss and he did not expose or fully expose his reasons for concluding that such a finding was not essential. 153 It is arguable that s 13(6) and s 8E(3)(c) made all the difference, but the Judge may not have reasoned in that way, and this cannot be known until his reasons are fully exposed. The question has not been fully argued and I express no concluded view on it. 154 In the circumstances legal error has been established, the appeal should be allowed, and this issue should be remitted to the Tribunal.

Sullivan v Gordon claim 155 The appellant's Sullivan v Gordon claim at the trial (Orange 27) was $60,339.71 for the loss of his capacity to look after his wife for 56 hours a week during 2012 which was expected to be the last year of her life. A common law entitlement to such damages is denied by CSR Ltd v Eddy [2005] HCA 64, 226 CLR 1. The legal basis for this claim must therefore be found, if at all, in s 15B of the Civil Liability Act inserted after that decision with retrospective effect under Pt 8 of Schedule 1. 156 This claim failed in the Tribunal because the appellant recovered damages for the cost of obtaining domestic services when he becomes incapable of providing them for himself. Since his wife would have the benefit of the same services there is no basis for a further award. The appellant's claim for the loss of the ability to provide nursing type services for his wife was disallowed because he lacked the necessary qualifications. 157 I agree with Basten JA and Campbell JA that this claim, as presented at the trial, fails. The appellant's attempt to support this claim on new grounds is not open on an appeal under s 32(1) of the Tribunal Act because there was no "decision of the Tribunal in point of law" on those grounds.

Form of Orders 158 There is no reason why the remission of the issue about the deduction of past and future expenses should reopen the entire damages award. 159 Section 32 (2) of the Tribunal Act provides: "The Supreme Court may, on the hearing of any appeal under this section, remit the matter to the Tribunal for determination by the Tribunal in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court sees fit." 160 In my judgment the section enables this Court to limit and define the remitted issue or issues, and if it were thought necessary UCPR Pt 51.53(2) and (3) may also be available. 161 I would therefore propose the following orders:

(2) Judgment of the Dust Diseases Tribunal set aside except as to costs;

(4) Subject to s 13(6) of the Tribunal Act the rehearing of the proceedings is limited to the issue so remitted;

(5) Respondent to pay the appellant's costs of the appeal. **********

27/10/2011 - Inclusion of the words "there is a finding", at the commencement of 116. - Paragraph(s) 116

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Workers Compensation Act 1926(NSW)

Workers' Compensation (Dust Diseases) Act 1942(NSW)

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