Colin McMaster Rogers v Amaca Pty Limited (formerly James Hardie & Co Pty Ltd) t/as Amaca [2014] NSWDDT 1 – Finnane J

PUBLISHED 02 Apr 2015

The plaintiff, Mr Rogers, sued his former employer James Hardie, now trading as Amaca Pty Ltd, for damages. He claimed that Amaca had been negligent because of the failure to warn him in any way of the dangers of asbestos, he contracted the disease of mesothelioma.

As Amaca admitted liability, the case became an assessment of damages.

Mr Rogers was 72 years old at the time of the proceedings. He was employed by James Hardie, now Amaca, from 1958 to 1967 as a carpenter. This is when he was exposed to asbestos.

Prior to be diagnosed with mesothelioma, he enjoyed a very active life of work, improving his property and going on skiing trips every year. At the time he was struck by the disease, the plaintiff intended to work until he was 80 and was earning approximately $200,000.00 per year.

Mr Rogers also had ongoing negotiations for a further building project on which he is set to receive substantial benefits.

The proceeding were heard by His Honour Judge Finnane who considered the following issues in awarding damages.

Non-Economic Loss

Finnane J found that Mr Rogers was entitled to receive damages for pain and suffering. Prior to this judgment, the highest amount awarded in the Dust Disease Tribunal for non-economic loss had been $290,000.00.

Finnane J saw no reason to cap the maximum amount for non-economic loss based on previous judgments, and as such made orders for $350,000.00 in regards to damages for pain and suffering.

Economic Loss

In assessing damages for economic loss, Finnane J ultimately considered four aspects:

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