Dunning v BHP Billiton Limited [2014] NSWDDT 3

Further to my earlier post about increasing general damages, Kearns J awarded a 54 year old plaintiff diagnosed with mesothelioma at the age 50 years, $500,000 and acknowledged it is $150,000 more than previous awards in the DDT. It is notable that awards in the DDT have increased prior to this decision by $50,000.00 this year, the previous ‘tariff’ being $300,000.00. Kearns J: 822 I am conscious that this figure is $150,000 in excess of any figure that has been awarded for general damages in the Tribunal before. That, in itself, has caused me to pause and consider and reconsider over a prolonged period. Whilst Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 directs that each case needs to be considered on its own merits, there is undoubtedly a benefit in the administration of justice in parties being able to assess general damages based on assessments and patterns and trends in other cases. This is probably even more so in a specialist tribunal where the same illness keeps recurring. One might expect something of a benchmark or approximate benchmark to be recognised. These matters have troubled me, but in the end, I have determined that I have to provide a reasonable assessment for Mr Dunning for his general damages. 823 This is not any ordinary mesothelioma case. Features of it that have impressed me in the making of this assessment include:

  • the plaintiff’s young age in contracting the disease;
  • the torrid surgical treatment the plaintiff underwent;
  • the torrid time the plaintiff had with his chemotherapy and subsequent radiotherapy;
  • the prolonged (for a mesothelioma victim) physical disability the plaintiff has had and will have. Most mesothelioma victims die within about 18 months of contracting the disease and, for a lot of that period, not all have intense, ongoing suffering;
  • the impact this illness has had and will have on the plaintiff including the miserable situation in which he now finds himself.

David Cormack – Brisbane Barrister & Mediator

NB: The decision was upheld on appeal and not set aside: BHP Billiton Ltd v Dunning [2015] NSWCA 55

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