Economic Loss
Deductions - Dust Disease benefits
​
Harris v Commercial Minerals Ltd [1996] HCA 49 ("Harris") is often cited in judgments when dust disease benefits are deducted in damages calculations. Harris uses very broad language in this regard:
[48] "Consequently, the common law courts should regard benefits under the Dust Diseases Act as compensation for injury and as a substitute or partial substitute for wages lost. Because the fundamental rule in an action for damages for tort is that a plaintiff cannot recover an amount more than he or she has lost (36), payments under that Act are deductible from any award of damages payable in respect of injuries that give rise to those benefits. Benefits receivable under the Dust Diseases Act are therefore deductible from any common law damages otherwise payable by an employer for injuries compensable under that Act."
​​
Harris was applied in James Hardie & Co Pty Ltd v Newton [1997] 42 NSWLR 729 ("Newton"). In Newton, there was no claim for loss of earning capacity, yet the DDA benefits (called a pension) did go to reduce the loss. In Newton, Stein JA states that a “head by head” approach is not justified, rather, the approach is a global one. To clarify, just because there was no loss of earning capacity, that did not prevent the DDA benefit from being deducted from the loss in its totality:
[3] "In accordance with Harris v Commercial Minerals Ltd it is plain that if the respondent was making any claim for economic loss, the pension payments would have been deductible. Since no such claim was made and consistent with the Tribunal decisions in Katidis v Meggitt (Overseas) Ltd (No 2)3 and Tompson v Goodyear Australia Ltd, Maguire J found that the pension was not deductible from the damages awarded.
[7] In my opinion, both factors are indicative that the legislative intention is that the weekly pension benefits received by the respondent should be taken into account in the assessment of common law damages. The pension is not independent of common law damages nor cumulative upon it. I am fortified in this conclusion by the trend of High Court authority, most recently demonstrated in Harris in relation to the subject legislation, albeit in the context of economic loss.
[7] In the instant case, non-economic loss and economic loss are both aspects of the one claim for common law damages for negligence. I do not think that there is any justification for a 'head by head' approach to set-off as held by the trial judge. There is but one award damages which is a single or global sum, (Arthur Robinson (Grafton) Pty Ltd v Carter)."