Kennedy v CIMIC Group Ltd & CPB Contractors Pty Ltd (DDT NSW) 31 July 2020; 455/2019

By Stuart Eustice, Partner

In a decision of the NSW DDT from 31 July 2020, we see an emerging acceptance of multiple assessments of damages in the one action, accounting for differences between the state in which each tort occurred.

Kennedy alleged suffering the same injury throughout the period 1967 to 1980 across two periods of employment, firstly in employment with CIMIC whilst in NSW and later CPB Contractors when in WA. The injury arose out of exposure to asbestos.

It was established in John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 that the Court, wherever sitting, is to apply the law of the land where the tort occurred (the lex loci). In much the same way as Webber v Comcare (DDT NSW) 11 December 2018, the DDT was to apply both NSW and WA tort law when assessing duty, breach and damages. Not much turns on an assessment of duty and breach given the nature of the exposures, more so a resolution of differences between jurisdictions as regards both permitted heads of damage and their quantification.

Specific to general damages, in NSW the court applies common law principles whereas in WA the common law is ‘modified’ by section 10A of Civil Liability Act 2002 (WA) requiring the court to reference previous awards for consistency. For gratuitous care received, in NSW this is prescribed by statute within s.15A of the Civil Liability Act. Section 15(5) of that Act limits the rate of care that can be applied. In WA the common law applies without modification and thus applies a commercial rate for care services. For gratuitous care provided (Sullivan v Gordon), in NSW this is prescribed by s.15B of the Civil Liability Act. In WA the common law applies in which case no damages can be awarded unless the loss of capacity can be regarded as a loss of, or impairment of amenity in which instance it is added to the award for general damages.

The Tribunal assessed damages under each states law and determined for the NSW tort damages assess at $690,562 and for WA $585,343. Kennedy was entitled to seek satisfaction of either or both judgments against one or both of the defendants up to a maximum of $690,562.

Our Comment

At least from the NSW DDT this consolidates the approach adopted by the Tribunal in Webber and we can expect this line of authority to continue in similar fact scenarios.