(re Dawson) Novek v Amaca Pty Limited

(re Dawson) Novek v Amaca Pty Limited - [2007] NSWSC 1288 - NSWSC 2008 case summary — Zoe

[87]

Section 15B of the CLA relevantly provides: In this section: … dependants, in relation to a claimant, means: (a) such of the following persons as are wholly or partly dependent on the claimant at the time that the liability in respect of which the claim is made arises: (i) the husband or wife of the claimant, (ii) a de facto partner of the claimant, being a person who has a de facto relationship (within the meaning of the Property (Relationships) Act 1984) with the claimant, (iii) a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise), (iv) any other person who is a member of the claimant's household, and (b) any unborn child of the claimant (whether derived through paragraph (a) (i) or (ii), adoption or otherwise) at the time that the liability in respect of which the claim is made arises and who is born after that time. gratuitous domestic services means services of a domestic nature for which the person providing the service has not been paid or is not liable to be paid. (2) When damages may be awarded Damages may be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, but only if the court is satisfied that: … (b) the claimant's dependants were not (or will not be) capable of performing the services themselves by reason of their age or physical or mental incapacity, and (c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant's dependants: (i) for at least 6 hours per week, and (ii) for a period of at least 6 consecutive months, and (d) there will be a need for the services to be provided for those hours per week and that consecutive period of time and that need is reasonable in all the circumstances. … (4) Determination of amount of damages The amount of damages that may be awarded for any loss of the claimant's capacity to provide gratuitous domestic services must not exceed the amount calculated at the same hourly rate as that provided by section 15 (5) regardless of the number of hours involved. (5) In determining the amount of damages (if any) to be awarded to a claimant for any loss of the claimant's capacity to provide gratuitous domestic services to the claimant's dependants, a court: (a) may only award damages for that loss in accordance with the provisions of this section, and (b) must not include in any damages awarded to the claimant for non-economic loss a component that compensates the claimant for the loss of that capacity. …. (11) Determining value of gratuitous domestic services In determining the value of any gratuitous domestic services that a claimant has lost the capacity to provide, the court must take into account: (a) the extent of the claimant's capacity to provide the services before the claimant sustained the injury that is the subject of the claim, and (b) the extent to which provision of the services would, but for the injury sustained by the claimant, have also benefited persons in respect of whom damages could not be awarded under subsection (2), and (c) the vicissitudes or contingencies of life for which allowance is ordinarily made in the assessment of damages.

[180]

COPYRIGHT RESERVED NOTE Copyright in this transcript is reserved to the Crown. The reproduction, except under authority from the Crown, of the contents of this transcript for any purpose other than the conduct of these proceedings is prohibited. Matter No DDT7376/07 DUST DISEASES TRIBUNAL OF NEW SOUTH WALES - SYDNEY BEFORE HIS HONOUR JUDGE KEARNS GARRY RAYMOND SNASHALL v COMCARE TRANSCRIPT OF PROCEEDINGS Friday, 29 February 2008 (Continued from Thursday, 21 February 2008) COUNSEL IN THE INTEREST OF For the Plaintiff Ms Segelov For the Defendant Ms Princi COMMENT .29/02/08 5 EXTRACT Snashall DDT7376/07 1 MATTER COMMENCED 2 3 MS SEGELOV 4 Your Honour, the matter was listed today to seek a hearing date. I can inform the Tribunal that 5 Mr Snashall died two days ago. The orders were complied with in relation to the previous 6 orders. Before we can get a hearing date we need to substitute the executor as the legal personal 7 representative. If we could just have the matter stood over for six weeks to, say, 11 April. We 8 will file a motion. 9 10 HIS HONOUR 11 I put it in for directions then. Before I make any order there is a comment or two I wish to make. 12 This is yet another sad case of a plaintiff dying before his case could be concluded. In a number 13 of cases I have expressed some views about this situation and I regret I find it necessary to repeat 14 and perhaps say more in relation to this situation. Mr Snashall is not the only plaintiff of recent 15 time to have died before his case could be completed. Within the last few days another plaintiff 16 whose case was allocated to me died before her case could be completed. In both instances these 17 plaintiffs died within a couple of weeks of the case being allocated to a judge. Indeed, of cases 18 allocated to me this year, and today is 29 February 2008, Mr Snashall is the fourth plaintiff to 19 have died before his case could be completed. 20 21 One of those plaintiffs died without being able to give evidence. I have checked through a 22 number of cases that have been allocated to me where a plaintiff has died without giving 23 evidence or before the case was completed. There have been at least ten and my time on this 24 Bench has been reasonably short. In practically every instance the plaintiff died within about a 25 fortnight of the case being removed from the claims resolution process. These are cases where 26 they were removed from the CRP because of the deteriorating health of the plaintiff. There is 27 something seriously wrong with a system that because of its structure denies a plaintiff access to 28 a judge until the last fortnight or the last few days of his or her life and at a time when he or she 29 is in a state of seriously poor and deteriorating health and with little prospect of his or her case 30 being completed during his or her lifetime. 31 32 In practically every case the statement of claim was filed in ample time for the case to be 33 disposed of before the plaintiff's death, if the case was managed by a judge from the filing of the 34 statement of claim. If the previous system had been in place practically every case, if not indeed 35 every case, could have been managed by the President from the time of the filing of the 36 statement of claim and would have been managed in a way that would have enabled the hearing 37 to be completed in the lifetime of the plaintiff without causing any prejudice to defendants. It is 38 true that general damages survive the death of the plaintiff. It should not be thought, however, 39 that because general damages survive the death of a plaintiff that cures all ills. 40 41 There are two matters to be considered here. One is the anguish, on top of the anguish 42 associated with the illness, that plaintiffs must be under not knowing the outcome of their cases. 43 A successful result for a plaintiff if the plaintiff is entitled to a verdict must be a matter of some 44 relief especially seeing that some provision is made for their loved ones and/or dependants. I am 45 reminded of some comments to this effect by Judge Walker on the occasion of his retirement 46 from this Tribunal. The comments I have in mind can be found in 2006 volume 3 of the Dust 47 Diseases and Compensation Court Reports at XLII. 48 49 The second matter that arises from the fact that judges cannot handle or hear cases until the 50 plaintiff's condition deteriorates is that most often a plaintiff's health is in such a state when he or .29/02/08 6 EXTRACT Snashall DDT7376/07 she gives evidence that they are weak, often in pain and/or medicated 1 with heavy opiate 2 medication for relief of pain and their attention and concentration span are severely affected such 3 that their ability to give lucid evidence can be significantly compromised. They ought to be able 4 to give their evidence when they are in better health and lucid. 5 6 I repeat my call for the regulators to reconsider the effect of the claims resolution process and 7 consider allowing all cases of terminal illness to be brought before a judge on the filing of the 8 statement of claim. 9 10 The order I make in this matter is that it be stood over for directions to 11 April 2008. 11 12 MATTER STOOD OVER FOR DIRECTIONS ON FRIDAY, 11 APRIL 2008

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