Vartuli v Alinta LGA [2007] NSWDDT 30 – Heard by O’Meally President

PUBLISHED 23 Apr 2015

Giuseppe Vartuli was an 87 year old  Plaintiff who sought damages for his asbestosis.  Mr Vartuli claimed that a consequence of his exposure to asbestos at work he contracted asbestosis. The claim was issued against his former employer and the Defendant, Alinta LGA Ltd.

Due to his asbestosis, since about 2005 Mr Vartuli became housebound in need of oxygen and a walking frame. As a result of Mr Vartuli’s poor health, part of the hearing occurred at the Plaintiff’s residence.

This matter is an important authority on damages for gratuitous domestic care and assistance.

The matter lead to two consecutive judgments.

Mr Vartuli also suffered from epilepsy, asthma, pneumonia and sleep apnoea. He was a smoker earlier in his life and the medical consensus which was accepted by His Honour was that this accounted for half of his respiratory disability.

The judge awarded $65,000.00 for general damages and a further $2,000.00 for loss of expectation of life.

His Honour made the following calculations:

1.       From 1 January 2006 until the date of trial, Mr Vartuli required 5 hours of care per day;

2.       From the date of trial and for 12 months thereafter, Mr Vartuli requires eight hours per day;

3.       For the following year Mr Vartuli requires 10 hours per day; and

4.       For the following year up until the estimated date of death (being three years from the date of trial), Mr Vartuli requires 16 hours per day.

As such, a total amount for past and future costs of $377,620.00 was awarded.

12 days later his Honour presided over this matter again. His Honour considered the award for past and future costs as being excessive and believed he was in error in expressing his findings.

He then referred to several piece of legislation and case law which gave him the right to re-sit the case after providing judgment, the main point being that “the order was made irregularly.” His Honour admitted that this was the case, as in awarding the amount for $377,620.00, he failed to take into consideration that the asbestosis accounted for only half of Mr Vartuli’s respiratory disability. As a result, this amount was halved, taking into consideration only those disabilities caused by asbestosis.

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