Case Law Update

Piatti v ACN 000 246 542 Pty Ltd [2020] NSWCA 168

Decision date: 28 August 2020

Re: section 15B of the Civil Liability Act 2002 (NSW) 

Background

Charles Rene Abegglen (‘the Plaintiff’) died from Mesothelioma on 22 April 2018 after being exposed to asbestos dust for over 20 years during his employment by the two respondents. The Plaintiff commenced proceedings seeking damages for negligence against ACN 000 246 542 Pty Ltd (‘First Respondent’) and Amaca Pty Ltd (‘Second Respondent’) in the Dust Diseases Tribunal. Roland Leon Piatti was appointed as Legal Personal Representative of the Estate of the late Charles Rene Abegglen.

His mesothelioma became apparent in mid-2016 and this was taken to be the time when the Respondent’s liability for the disease arose. At this time, Mr Abegglen was providing care and supervision to his wife for 16 hours each day. By the time damages were assessed, Mr Abegglen had died and Mrs Piatti required 24-hour care.

On 23 August 2019, Judge Russel DCJ found that Mr Abegglen was exposed to causally-significant levels of carcinogenic asbestos dust by each respondent, that negligence was established and that there should be judgment for the Plaintiff against each Respondent: Piatti v ACN 000 246 542 Pty Ltd [2019] NSWDDT 7 at [27]-[28]. Russell DCJ gave judgment for the Plaintiff (on behalf the deceased’s estate) in an amount of $1,058,748.84.00.

A substantial component of the damages ($611,719.00) awarded was for loss of Mr Abegglen’s capacity to care for his long-term partner, Mrs Piatti, who suffered from Alzheimer’s disease and vascular dementia. The damages were assessed pursuant to s 15B of the Civil Liability Act 2002 (NSW).

The judge in the Dust Diseases Tribunal held that the calculation of damages was limited to the lower level of services being provided at the time liability for the disease arose in mid-2016.

Accordingly, he calculated the damages based on 16 hours of care per day as opposed to the increased level of 24 hours per day. The judge held, however, that he was not entitled to assess damages by reference to a need which had increased since the time liability arose, namely in mid-2016.

The primary judge considered himself bound to adopt that approach by cases previously decided in the New South Wales Court of Appeal: State of New South Wales v Perez (2013) 84 NSWLR 570; [2013] NSWCA 149 and Dionisatos (for the Estate of the late George Dionysatos) v Acrow Formwork Scaffolding Pty Ltd (2015) 91 NSWLR 34; [2015] NSWCA 281.

Appeal – Basten JA, McCallum JA and Simpson AJA

The present appeal, brought on behalf of the estate, concerned a claim for loss of capacity to provide domestic services, being services which the Plaintiff had been providing to his wife.

The parties to the appeal were:

• Appellant – Roland Leon Piatti (as Legal Personal Representative of the Estate of the late Charles Rene Abegglen)
• First Respondent – ACN 000 246 542 Pty Ltd
• Second Respondent – Amaca Pty Limited

The central question on appeal was whether there was an upper limit on the amount of damages that may be awarded under section 15B fixed by reference to the level or kind of services that were being provided by the claimant at the time liability arose [paragraph 30].

Damages for the loss of capacity to provide domestic services are calculated pursuant to section 15B of the Civil Liability Act 2002 (NSW). Generally speaking, section 15B deals with the claimant’s capacity to provide services to others, which is lost as a result of the injury [paragraph 9].

At that time, section 15B read as follows:

15B   Damages for loss of capacity to provide domestic services

 

• Definitions

In this section:

…

dependants, in relation to a claimant, means: 

• 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:

• the husband or wife of the claimant,

• a de facto partner of the claimant,

Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987.

• a child, grandchild, sibling, uncle, aunt, niece, nephew, parent or grandparent of the claimant (whether derived through subparagraph (i) or (ii), adoption or otherwise),

• any other person who is a member of the claimant’s household, and

• 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.

• 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:

(a)   in the case of any dependants of the claimant of the kind referred to in paragraph

• of the definition of dependantsin subsection (1) — the claimant provided the services to those dependants before the time that the liability in respect of which the claim is made arose, and

• 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

• 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.

Note.  Section 18 provides that a court cannot order the payment of interest on damages awarded for any loss of capacity of a claimant to provide gratuitous domestic services to the claimant’s dependants.

Decision

The Court held that damages may be awarded based on the loss of capacity as at the time of judgment.

It was held the proper construction of subs (2) is that, provided the court is satisfied that the four conditions in pars (a)-(d) are met, the Plaintiff is entitled to an award of damages for the entire loss of capacity, past and future, as at the date of assessment of damages (as assessed in accordance with and subject to the balance of section 15B, which imposes other limitations that do not require consideration in the present case) [paragraph 64].

The primary judge was also satisfied that, but for his death, Mr Abegglen would have continued to provide domestic services to Mrs Piatti until one of them died. On that basis, he determined that damages must be calculated by reference to Mrs Piatti’s life expectancy, which his Honour determined to be a period of two years from the date of judgment. The Court of Appeal upheld this aspect of the primary judgment.

Prepared by Andrew Kemp, Solicitor, and Jackson Gilbert, Solicitor.

 

24 September 2020

 

For further information please contact:

Andrew Kemp

Kemp & Co Lawyers

Level 3, 7 Bridge Street

SYDNEY NSW 2000

Phone: 9241 7799

Fax: 9241 1178

Email: info@kempandco.com.au