Tort Temperature Update Amaca v Latz

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Tort Temperature Update Amaca v Latz South Australian

s decision in Latz v Amaca reads like a decision from 35

In this novel case the High Court ruled that 71 year old

1 Tort Temperature Update Amaca v Latz South Australian Claim for Lost Pension upheld in High Court The High Court s decision in Latz v Amaca reads like a decision from 35 years ago. The decision can be found here. In this novel case the High Court ruled that 71 year old Mr Latz was entitled to damages for 16 years worth of his state superannuation 1

asbestos products in the late 1970s while undertaking a home renovation.

superannuation pension due to the premature death arising from the terminal disease (i.e. for the lost years ).

2 pension of around $50,000 per year. Mr Latz who is retired, was diagnosed with terminal malignant mesothelioma at the age of 70, following exposure to asbestos products in the late 1970s while undertaking a home renovation. Part of the claim against Amaca (the former James Hardie entity) was for the loss of the age pension and a state superannuation pension due to the premature death arising from the terminal disease (i.e. for the lost years ). District Court The District Court judge determined that but for James Hardie s tort, Mr Latz would have continued to receive his State pension for the rest of his expected life and awarded Mr Latz $1,062,000 including $500,000 for future economic loss. 2

Supreme Court The Court of Appeal in South Australia, after Amaca appealed, found (two to one) in favour of the claimant and upheld the loss of

The quantum of the economic loss, however, was reduced due to an entitlement of Mr Latz s partner to a reversionary payment under the

High Court The High Court of Australia, which sat as a bench of seven justices, agreed with the Court of Appeal and upheld the loss of Mr Latz s

3 Supreme Court The Court of Appeal in South Australia, after Amaca appealed, found (two to one) in favour of the claimant and upheld the loss of Mr Latz s superannuation pension and age pension. The quantum of the economic loss, however, was reduced due to an entitlement of Mr Latz s partner to a reversionary payment under the superannuation pension following Mr Latz s death. High Court The High Court of Australia, which sat as a bench of seven justices, agreed with the Court of Appeal and upheld the loss of Mr Latz s superannuation pension but decided that the Supreme Court erred in including an allowance for the loss of the age pension. The decision to uphold the loss of the superannuation pension was made by a majority of five to two. What is the significance of the High Court decision? The High Court decision will, presumably, be binding on all Courts 3

4 deciding personal injury claims under Common Law. This is the first time in recent memory that a High Court case expanded the Common Law right to damages, possibly since the 1980s. From the time of the tort reforms in 2002 and 2003 court decisions have generally been closely tied to the previous precedents and this approach was strongly supported by the changes in legislation following the liability insurance crisis and the Ipp Report. Even before the Ipp Report, lawyers were very confident that Courts (led by the High Court) had become more conservative in their decision making about personal injury claims. In this case the minority Justices (Kiefel and Keane) argued that there was no merit in a case that expanded the scope of common law damages that had been established in law for many years. While any expansion of common law is potentially a hot decision from the perspective of the tort temperature, in this instance the implications for personal injury claims may be limited by the particular circumstances under which the expanded scope of damages would apply. Particularly we note that: The impact of the decision is likely limited to claimants with access to defined benefit superannuation (i.e. not the age pension). This is expected to be most common for former government employees. The claimant must have opted to take the superannuation benefit as a pension and not a lump sum Any damages for the pension loss would be reduced by reversionary payments available to claimants with a living spouse. Historically reversionary entitlements under these types of superannuation schemes are a significant proportion of the available pension, often 75% or greater. 4

5 Read Finity Principal, Geoff Atkins' thoughts on this case. Tort Temperature - how hot is it? At Finity we keep a close eye on court judgements to test the tort temperature. To learn more about our work in this space, or to subscribe: Contact us Tort Temperature Update Authors Geoff Atkins geoff.atkins@finity.com.au Justin Portelli justin.portelli@finity.com.au ANZIIF Professional Services Firm of the Year (Aus & NZ) Six time winner ANZIIF Service Provider of the Year ANZIIF Hall of Fame 5

Developments. Dust Diseases

Developments. Dust Diseases November 2017 Dust Diseases Developments Dust Diseases Developments brings you the latest happenings in Australian asbestos and dust diseases compensation. You may have seen it before as Asbestos News.