Wife exposed to asbestos on husbands work cloths claims for mesothelioma

Published 02 Jul 2015

Gillespie v Hurll Nu-Way Pty Ltd [2015] NSWDDT 1 (16 April 2015)

 

The Plaintiff, Mrs Annette Jean Gillespie, commenced proceedings against her husband’s former employer, Hurll Nu-Way Pty Ltd, for the domestic exposure to her husband’s work clothes which she alleged led to her developing mesothelioma.

ISSUES

In compensation cases, if damages are awarded, they must be used to pay for future medical and hospital treatment in the New South Wales Public Health System according to Health Services Act 1997 (NSW) s 71. The problem for Mrs Gillespie, at that point in time, was that it was impossible to accurately determine those costs.

Mr Russell SC submitted that she should have leave to amend her Statement of Claim in response to the impossibility to calculate her future medical expenses.

The Statement of Claim could be amended in three ways:
  1. To require the defendant to indemnify the plaintiff for future hospital costs when they arise.
  2. To have her case reconsidered in the Tribunal if she has further hospital expenses in the future.
  3. To have the damages assessed and ordered by the Tribunal pursuant to the Civil Procedure Act 2005 (NSW) s 82.
DECISION

The first alternative was not accepted as it infringed on the once and for all rule. That rule provides that damages are to be awarded only one time for past and future expenses.

The second alternative was not accepted as matters will only be reconsidered by the Tribunal in exceptional cases such as in the case of CSR Ltd & Anor v Bouwhuis (1991) 7 NSWCCR 223 where damages were awarded on the assumption that the plaintiff was to live for eight months. However, just after that judgment, the defendants became aware that the plaintiff in reality had a life expectancy of less than one month. Justice Curtis did not believe that Ms Gillespie’s case was an exceptional case and stated that the only avenue to correct an erroneous judgment would be to appeal the judgment.

The third amendment was allowed. Mrs Gillespie has a right to claim progressive medical expenses as they arise and Justice Curtis indicated that, due to the fact that Mrs Gillespie is dying, this will be determined in a short amount of time.

ORDERS

The Plaintiff was granted leave to amend her Statement of Claim in accordance with the third alternative.