Hudson v Amaca Pty Ltd [2022] NSWDDT 6

Rogalski Lawyers represented the Plaintiffs in these proceedings.

The late Mr Keith Hudson was born in 1949.  He worked as a carpenter and builder in the Australian Capital Territory and New South Wales.  The late Mr Hudson was exposed to asbestos from about 1980 to about 1986 while he worked for AV Jennings Home Improvements (“Jennings”).  It was alleged that the late Mr Hudson was exposed to asbestos containing products which were manufactured and supplied by James Hardie.  These asbestos products included fibro sheeting such as Hardiflex, Hardiplank, Shadowline, compressed fibro sheeting and Tilux.  As a result of the late Mr Hudson’s asbestos exposure it was alleged that he developed mesothelioma.

The late Mr Hudson was diagnosed with mesothelioma in about December 2020.  Tragically, following a period of very serious deterioration (which included periods of hallucinations) the late Mr Hudson succumbed to his illness later that same year.  Fortunately, proceedings were filed in his lifetime and his entitlement to pursue his action was assumed by his wife, Mrs Daphne Hudson, who acted as the legal personal representative of his estate. Mrs Hudson also brought a claim for dependency benefits in respect of their son, Joseph Hudson, who suffers from Downs Syndrome and requires twenty-four (24) hour care.

Damages were assessed under the law of New South Wales and Australian Capital Territory.  Of interest is the fact that notwithstanding the relatively short duration of suffering, His Honour Judge Russell made a robust award of general damages in the sum of $360,000.00.

Issues were raised by the Defendant in relation to whether adequate notice of the claim under the law of Australian Capital Territory was provided to the Defendant prior to the Plaintiff passing away. This issue was raised even though no specific notice in respect of a dust related claim regarding mesothelioma was available at the relevant time.  Ultimately, it was found under Section 62(1) of the Wrongs Act (ACT) that the opening words of that section contemplate that court proceedings can be commenced notwithstanding no Notice of Claim being given.  In other words, failure to provide notice under the relevant procedural rules is not a bar to proceedings being pursued.  Further, the Tribunal held that because the Wrongs Act operated as procedural law, it could be disregarded by a New South Wales court applying the substantive law of Australian Capital Territory.

On the above basis, a dual assessment of damages was made by His Honour Judge Russell.  The plaintiff was able to select either assessment.  It ultimately resulted in an estate claim assessment of $475,840.38 under New South Wales law as contrasted to an assessment of $440,897.93 under the law of Australian Capital Territory.

In respect of the dependency action, it was accepted that Mr Joseph Hudson requires twenty-four (24) hour round the clock care.  Mr Hudson was already in receipt of benefits under the National Disability Insurance Scheme (“NDIS”) at the time the proceedings were pursued.  Accordingly, the dependency claim was pursued on the basis that any damages which were awarded were to compensate him for any period of time in which he did not receive benefits under NDIS.  On this basis there was no refund to be made to NDIS at the conclusion of the claim.

Of interest is the fact that the defendant argued that while Mr Joseph Hudson required twenty-four (24) hour care at the time of the proceedings, he did not mitigate his loss by seeking further support from NDIS.  In other words, the defendant alleged that Mr Joseph Hudson ought to have applied for a reassessment of his needs under the NDIS.  Ultimately, it was held that a reassessment of his need for care and support would likely be adverse to his interests.  This was held on the basis that funding provided to NDIS was decreasing rather than increasing.  The Tribunal accepted expert evidence which was to the effect that on recent appeals for re-assessment (in very similar circumstances to Mr Joseph Hudson’s) findings were made against applicants who applied for re-assessment of their support packages under NDIS.  The Tribunal ultimately held that Mr Joseph Hudson had acted reasonably by not seeking reassessment of his NDIS plan.  He was awarded $2,362,334.00 in damages.

The overall assessment of damages in the amount of $2,838,174.00 plus sanction costs of $213,800.00 which ultimately resulted in a judgment of $3,051,974.00 plus costs.  The verdict represents the highest ever quantum judgment delivered by the Tribunal.

Date Posted: February 23, 2024