Lynette Scanlan as Executor of the Estate of the Late David Scanlan v Wormald Australia Pty Limited and Ors [2026] NSWDDT 1

(1) The purpose of this section is to enable the estate of a person whose death has been caused by a dust-related condition to recover damages for the person's pain or suffering, or for any bodily or mental harm suffered by the person, or for curtailment of the person's expectation of life, provided proceedings commenced by the person were pending before the Tribunal at the person's death.

(2) Section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 does not apply in relation to proceedings commenced by a person before his or her death and pending before the Tribunal at his or her death, where the cause of action is for damages in respect of a dust-related condition.

1. Section 2(2)(d) of the Law Reform (Miscellaneous Provisions) Act 1944 provides:

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:

...

(d) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall not include any damages for the pain or suffering of that person or for any bodily or mental harm suffered by the person or for the curtailment of the person's expectation of life.

1. The present claim is subject to the Claims Resolution Process provided for in the Dust Diseases Tribunal Regulation 2019 (the Regulations): clause 16.
2. Clause 17 of the Regulations provides:

(1) While a claim is subject to the claims resolution process--

(a) the parties to the claim must comply with the provisions of this Part, and

(b) proceedings in the Tribunal to determine the claim are deferred and the claim is not subject to case management by the Tribunal, and

(c) the claim is not subject to the provisions of rules of court, or any direction or order of the Tribunal under a provision of the Act, any other Act or rules of court, as to any steps to be taken in proceedings on the claim or for the referral of the claim for alternative dispute resolution, such as mediation.

Note : Clause 20 provides for the removal of certain claims from the claims resolution process.

(2) This clause does not affect the application of the practice and procedures of the Tribunal with respect to--

(a) the service of the statement of claim or cross-claim, including the service of the statement of claim outside Australia, or

(b) the amendment of the statement of claim to join a party before the plaintiff's statement of particulars is served, or

(c) the amendment of the statement of claim to join a party to the claim at the request of the plaintiff where the Tribunal is satisfied that it is necessary to do so to preserve the plaintiff's cause of action, or

(d) the amendment of the statement of claim to add a compensation to relatives claim after the death of the plaintiff, or

(e) the making of cross-claims, except to the extent of any inconsistency with clause 25, or

(f) the making of orders to give effect to any agreement or arrangement between the parties, whether resulting from an offer of compromise or otherwise, or

(g) the issue and return of subpoenas, or

(h) the granting of leave to commence an action under section 5 of the Civil Liability (Third Party Claims Against Insurers) Act 2017, or

(i) the making of directions or orders to give effect to, or consequent on, an amendment of the statement of claim to institute proceedings against a new party or to substitute a party, or

(j) the amendment of the statement of claim to discontinue proceedings against a party.

Note : If a claim is not settled through the claims resolution process, proceedings in the Tribunal can proceed or the parties can decide to continue with attempts to settle the claim.

(3) Without limiting subclause (1), while a claim is subject to the claims resolution process and before the plaintiff's statement of particulars is served, the plaintiff may, without leave, amend the plaintiff's statement of claim.

(4) Subclause (3) does not apply if the plaintiff's statement of claim is filed in conjunction with an application under clause 20 for a determination by the Tribunal that the claim is urgent and that application results in the making of a determination.

Note : When a statement of claim is filed in conjunction with an application under clause 20, clause 23(7) provides that a statement of particulars is not required.

1. The reference to "proceedings" in s 12B is proceedings in relation to a cause of action in respect of a dust-related condition commenced against a particular defendant by the deceased: Amaca Pty Ltd v Cremer [2006] NSWCA 164; (2006) 66 NSWLR 400 at [80] and [127]-[128] (McColl JA) and [194]-[196] and [202] (Brereton JA).
2. Generally, proceedings are pending as soon as they are commenced and until they are concluded, so long as the court has jurisdiction to deal with them: Arab Monetary Fund v Hashim [1992] 1 WLR 1176, Dresser UK Ltd v Falcongate Freight Management Ltd [1992] 1 QB 502, Kloeckner & Co AG v Gatoil Overseas Inc [1990] 1 Lloyd's Rep 177 at 201 (Hirst J) and The Nord Sea [1989] 1 Lloyd's Rep 388 at 390 (Sheen J). This includes a case that is stood over generally with a view to compromise but had been "allowed to sleep": J B Brooks & Co Ltd v Lycett Saddle and Motor Accessory Co Ltd [1904] 1 Ch D 512.
3. The commencement of proceedings against a deregistered company is not a nullity, even if it has no immediate legal effect or consequence for the non-existent company: Allianz Australia Insurance Ltd v Viksne (2021) NSWLR 306 at [44] (Meagher JA, White JA and Simpson JA agreeing). The fact that the statements of claim were not served is not relevant to the validity of the commencement of proceedings: Viksne at [45].
4. Service is a procedural step undertaken in a pending action that imposes procedural obligations on the parties: Dresser at 717C-D and 518H (Bingham LJ). A court usually has jurisdiction to make orders against a defendant before proceedings are served, such as the making of injunctions and orders for substituted service: Dresser at 519.

1. Wormald and Downer concede that the deceased commenced proceedings against them seeking damages for a dust-related condition before his death.
2. However, Wormald and Downer contend that the words in s 12B "pending before the Tribunal at the person's death" required the Tribunal to have taken some step in the proceeding, such as the allocation of a first directions hearing. In Hunter Quarries Pty Ltd v Morrison (No 4) [2016] NSWIC 4 the Full Bench of the Industrial Court decided that appeal proceedings were not pending before it, until the appeal in substance was listed for hearing and that the interlocutory steps that had been completed in the appeal prior to the abolition date were not sufficient to make the proceedings pending before the Full Bench.
3. Wormald and Downer contend that the proceedings were not pending before the Tribunal because:

(a) the proceedings were deferred pursuant to clause 17 of the Regulations; and

(b) no first directions date could be allocated until the proceedings were validly served, the defendants filed a Notice of Appearance and the plaintiff served a Form 1 Statement of Particulars in accordance with the Regulations.

1. In reply, Wormald and Downer contended that the Court of Appeal in Allianz Australia Insurance Ltd v Viksne (2021) NSWLR 306 did not decide if s 12B was capable of applying to proceedings that were not validly served on a registered defendant prior to the injured person's death. As I understood the argument, Wormald and Downer maintained that in order for the proceeding to be pending, it had to have been served on a defendant.

1. The decision as to whether a proceeding is pending depends on context. For example, in Dresser the legislation required the proceeding to be "definitively pending", which the Court of Appeal determined required the proceedings to be served. In Arab Monetary Fund, it was sufficient for unserved proceedings to have been commenced for them to be "pending" in order for the court to make an order consolidating them with other proceedings.
2. Generally, a proceeding is pending if it has not been settled, determined or discontinued and the court has jurisdiction to deal with the claim.
3. The proceedings commenced by the deceased against Wormald and Downer were for a cause of action in respect of a dust-related condition. The Tribunal's jurisdiction was invoked by the issue of the Statement of Claim and it had power to make orders set out in cl 17(2) of the Regulations, notwithstanding the deferral imposed by cl 17(1) until the completion of the claims resolution process. The fact that the Tribunal had some powers to deal with the proceedings prior to the deceased's death gives the words in s 12B "pending before the Tribunal" some work to do.
4. In Viksne, the Court of Appeal decided that:

(a) the proceedings commenced against a deregistered company were not a nullity and were thereby pending before the deceased's death, notwithstanding that date was before the deregistered company was restored to the register; and

(b) service of the Statement of Claim was irrelevant to whether or not the proceedings had been validly commenced.

1. Wormald and Downer contend that they have been prejudiced in responding to the claim because they were not served with the Statement of Claim during the deceased's lifetime and that their position is different to that of the deregistered defendants, who could not be served at that time. Assuming that Wormald and Downer may have incurred some prejudice in this case, that does not provide a basis for interpreting s 12B in one way when dealing with a deregistered defendant that could not be served and another way when dealing with a registered defendant that was not served.
2. This aspect of Viksne, that service can be irrelevant to the issue of whether or not a proceeding is pending, is consistent with the authorities cited at [12] and [14] above.
3. Further, this position was contemplated by Brereton JA in Cremer at [188], where obiter he described the situation "where proceedings have been filed but not yet served, in which circumstance the right to general damages against the original defendants is preserved" without even knowing of the action against them.
4. The Industrial Court's decision in Hunter Quarries can be distinguished on a number of bases. First, the transitional provisions expressly provided a definition of what were "pending proceedings". That definition was specific to that legislation and cannot be applied outside it: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378. Second, the transitional provisions were procedural and were enacted to specify where an action would be heard in the context of the abolition of the Industrial Court. In contrast, s 12B was intended to affect substantive rights by removing a defence to a claim that would otherwise be available to a defendant.
5. Finally, the acceptance of the argument pursued by Wormald and Downer would lead to unintended results. First, a defendant would be able to avoid liability for general damages by evading service during the plaintiff's lifetime. Second, it is commonplace in the Tribunal for plaintiffs with mesothelioma or lung cancer to die suddenly and without notice to their legal representatives. Acceptance of the argument would mean that damages for non-economic loss and loss of expectation of life would be denied to injured parties who had not progressed their case to a first directions hearing before the Tribunal, even if they had diligently participated in the claims resolution process up to that point. If that was the intent of the legislation, it would have included that procedural requirement (the allocation of a first directions hearing) as a precondition to reliance on s 12B.

1. For all of these reasons, Wormald and Downer's argument fails.

(1) I grant leave to the plaintiff to file an Amended Statement of Claim in the proposed form within seven days.

(2) Wormald and Downer are to pay the plaintiff's costs of the Notice of Motion on the ordinary basis, as agreed or assessed.