Raymond John Dean v Tower Insurance Ltd (for Rogers Meat Co Pty Ltd) [2013] NSWDDT 9 (30 July 2013)

Published 08 May 2015

The plaintiff, Mr Dean, was a 61 year old man who sued the insurer of his former employer, Tower Insurance Ltd (for Rogers Meat Co Pty Ltd), for the asbestos exposure he experienced while employed with them in the late 1960s.

ISSUES

The first issue was whether Mr Dean was exposed to asbestos during his employment. This was not disputed by the defendant.

The Court also accepted the evidence that Mr Dean was not provided with a mask or safety equipment nor was he given any warning as to the consequences of asbestos exposure. His employer had done nothing to protect him from the asbestos exposure. The Court accepted that it was reasonably foreseeable that asbestos exposure, regardless of the amount, could cause harm to the plaintiff.

INJURIES SUFFERED

In 2012, Mr Dean was diagnosed with mesothelioma. Evidence was accepted from his physician claiming that, as a result of the condition, Mr Dean would have a significantly shortened life span. He suffered from many of the excruciating side effects of mesothelioma.

Prior to his diagnosis, Mr Dean had suffered a back injury and could not work. He spent his time doing the household duties, the property maintenance, looking after his four children and driving his wife around who did not have her driver’s licence. After the diagnosis, due to lack of energy, he was unable to complete most of those activities.

DECISION

Finnane J found in favour of Mr Dean in accepting that the plaintiff suffered mesothelioma as a result of the negligence of the employer and awarded damages to be paid by the insurer.

DAMAGES

1.       The parties agreed that the damages for the loss of expectation of life were to be $25,000.

2.       The Court accepted the plaintiff’s claim for damages for past and future gratuitous care of $80,000.

3.       Finnane J took into account the fact that he had previously spent a large amount of time looking after his dependents (his wife and his children). Under the Civil Liability Act 2002 (NSW) s 15B, the Court can order damages for the loss of capacity to provide domestic assistance to the plaintiff’s dependants. Finnane J considered the necessary hours required to give the assistance and the fact that some assistance was provided jointly with his wife as well as considering Mr Dean’s age. Finnane J calculated the damages under s 15B at $420,032.

4.       General damages were awarded at $292,900 which was within the usual range awarded at that time under this head of damages.

The damages awarded to Mr Dean totalled $817,932.

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