Australia: The jurisdiction of the Dust Diseases Tribunal of New South Wales – Nervous Shock excluded
Curwoods Case Note

Trustees of the Sydney Grammar School v Winch [2013] NSWCA 37

In Brief

• The Court of Appeal overturns its previous decision of Mangion v James Hardie & Co Pty Ltd.
• The Court of Appeal restricts the jurisdiction of the Dust Diseases Tribunal to exclude claims for nervous shock.

Background

Jessie Winch (Plaintiff) commenced proceedings in the Dust Diseases Tribunal of New South Wales seeking damages, interest and costs to compensate her for the condition of nervous shock arising from the death of her father who had contracted mesothelioma from his exposure to asbestos whilst employed as an art teacher by Sydney Grammar School in the 1970s.

The Trustees of the Sydney Grammar School (Sydney Grammar) moved the Tribunal for an order that the nervous shock proceedings be dismissed for want of jurisdiction. His Honour Judge Kearns dismissed the application holding that he was bound to do so by virtue of the Court of Appeal's decision in Mangion v James Hardie & Co Pty Ltd (Mangion). ²

Sydney Grammar sought leave to appeal the decision in the Court of Appeal and the full argument was heard at the time of the application for leave to appeal.

Decision at First Instance

It was contended before his Honour Judge Kearns of the Dust Diseases Tribunal³ that the claim was not within the jurisdiction of the Tribunal as the Plaintiff did not meet the legislative requirements of s 11(1) of the Dust Diseases Tribunal Act 1989 (the Act). Relevantly, it was asserted that the Plaintiff was not "a person claiming through a person suffering from a dustrelated condition".

His Honour Judge Kearns felt compelled to follow the Court of Appeal decision of Mangion as authority for the proposition that the Tribunal did have jurisdiction to deal with a claim for nervous shock "emanating from the illness or death of a person with a dust-related condition".

Court of Appeal Decision

Two issues were raised on appeal from the primary Judge's decision: firstly, that because the Plaintiff was not "claiming through" her deceased father and that her proceedings were not "for damages in respect of" her deceased's father's mesothelioma, her claim did not meet the criteria of s 11(1)(c) of the Act.

Secondly, that the authority of Mangion that a nervous shock claim was within the Tribunal's exclusive jurisdiction, was wrong and should be overruled.

A matter raised in response by the Plaintiff was that a claim for nervous shock sustained by reason of knowledge of a person's death from a dust-related condition attributable to an employer's breach of duty of care, should properly be regarded as being a claim made "through" the exposed person (the Plaintiff's deceased father). It was also argued that the Plaintiff's nervous shock only developed as a result of her deceased father suffering from and dying because of his dust-related condition.

In the comprehensive judgment of McColl JA, she examined a number of authorities delivered since the Court of Appeal's decision in Mangion to which she referred as the "Post-Mangion jurisprudence".

Her Honour's analysis identified that, in each case in which the Tribunal was found to have jurisdiction, a person suffering from a dust-related condition was the central part of the claim.

Her Honour then considered the meaning and interpretation of the phrases "claiming through" and "in respect of", finding that the phrases must be read harmoniously and the claimant's action must depend on and/or be derived from the exposed person's cause of action.

Having considered the "Post-Mangion jurisprudence", McColl JA identified the exclusive jurisdictional limits conferred upon the Tribunal by s 11(1) of the Act as being a claim made by a person who is suffering or has suffered from a dust-related condition, such condition arising from a breach of duty owed to that person, but can include a person claiming through the person exposed to dust.

However, the claimant and the exposed person must have been entitled to bring an action for the recovery of damages in respect of the dust-related condition or death.

In respect of the Plaintiff's proceedings for nervous shock, they were not proceedings which could have been brought by the Plaintiff's deceased father, nor were they dependant upon a right of action vested in the deceased.

McColl JA expressed the view that the Court of Appeal should have reached a different conclusion in Mangion and that substantive and procedural amendments to the Act reinforce the view that Mangion was incorrectly decided. Her Honour concluded that the Tribunal's jurisdiction did not extend to the Plaintiff's claim for damages for psychiatric illness.

In the joint judgment of Bathurst CJ, Allsop P and Meagher JA (with whom Beazley JA agreed), it was agreed that the decision of Mangion was sufficiently wrong to justify a departure from it and the orders proposed by McColl JA were adopted.

The appeal was allowed and the Plaintiff was ordered to pay Sydney Grammar's costs.

Implications

The Court of Appeal's decision is a significant development in terms of limiting the otherwise embracing jurisdiction of the Dust Diseases Tribunal.

Despite the Court of Appeal's decision to place nervous shock claims outside the jurisdiction of the Tribunal, it is clear that the right to pursue claims pursuant to the Compensation to Relatives Act 1987 and claims on behalf of a deceased's Estate are still preserved.

The fact that there are now two conflicting Court of Appeal authorities on this jurisdictional issue may increase the prospects of an application for special leave to the High Court.

Finally, despite the Tribunal not having jurisdiction in respect of the claim for nervous shock, the cause of action is preserved and may theoretically, be pursued in the Supreme Court of New South Wales.

Footnotes

¹ Bathurst CJ, Allsop P, Beazley, McColl, and Meagher JJA

² (1990) 20 NSWLR 100

³ Winch v The Trustees of the Sydney Grammar School [2011] NSWDDT 8

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