Caird v Bendix Mintex Pty Ltd - [2003] WASC 68

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CAIRD -v- BENDIX MINTEX PTY LTD & ORS [2003] WASC 68

CORAM: ACTING MASTER DIXON

HEARD: 30 JANUARY 2003

DELIVERED : 7 APRIL 2003

FILE NO/S: CIV 1590 of 2002

BETWEEN: KERYL MAVIS CAIRD
Plaintiff
AND
BENDIX MINTEX PTY LTD (ACN 004 332 496)
First Defendant
AMABA PTY LTD (ACN 000 387 342)
Second Defendant
IVECO TRUCKS AUSTRALIA PTY LTD (ACN 004 065 061)
Third Defendant
FORD MOTOR COMPANY OF AUSTRALIA LTD (ACN 004 116 223)
Fourth Defendant
SALMON STREET LTD (IN LIQ) (ACN 004 125 197)
Fifth Defendant

Catchwords:

Application to strike out statement of claim - Causation - Turns on own facts

Legislation:

Nil

Result:

Statement of claim struck out

Category: B

Representation:

Counsel:

Plaintiff:     Mr T J Hammond
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     Mr L F A Nixon
Fifth Defendant            :     No appearance

Solicitors:

Plaintiff:     Slater & Gordon
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     No appearance
Fourth Defendant          :     Clayton Utz
Fifth Defendant            :     No appearance

Case(s) referred to in judgment(s):

Bruce v Odhams Press Ltd [1936] 1 KB 697
Chandler v Water Corporation [2001] WASC 166
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Prast v Town of Cottesloe [2000] WASCA 274
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Young v Holloway (1895) P 87

Case(s) also cited:

ABB Service Pty Ltd v Hetherington [2001] WASCA 235

ACTING MASTER DIXON: By way of an application dated 22 November 2002 the fourth defendant ("Ford") has sought to strike out the endorsement on the plaintiff's writ of summons and also the plaintiff's statement of claim, or alternatively, various paragraphs of that statement of claim.
As regards the application to strike out the endorsement, the parties have reached agreement regarding an amendment to the endorsement, leaving outstanding only the question of costs. I do not need to deal with that aspect of the matter any further.
As regards the application to strike out the statement of claim, there appears to be some confusion in this respect. On 24 September 2002, whilst sitting as a Case Management Registrar, I gave the plaintiff leave to file and serve a reamended writ of summons by 1 October 2002 and also directed that the plaintiff file and serve a minute of proposed amended statement of claim by 8 October 2002. The plaintiff duly filed a minute of amended statement of claim dated 7 October 2002. It does not appear that leave has ever been given to the plaintiff to amend the statement of claim in terms of the minute. As such, the statement of claim currently on foot is that dated 23 May 2002. Ford's application is, however, directed towards that minute as if it stands as the plaintiff's amended statement of claim. I propose dealing with this matter by considering the minute and the various objections raised to it by Ford. Further consideration may be given in due course as to whether the effect of a successful application by Ford will be the striking out of the minute, in the event that it does in fact stand as the statement of claim, or perhaps the refusal of leave to the plaintiff to amend in terms of the minute. I will hear from the parties further in this respect in due course.
As will be seen in more detail below, this action arises out of alleged asbestos exposure suffered by Thomas Rudler, a mechanic in Boyanup, which is said to have caused him to have suffered from malignant mesothelioma amongst other things. He died on 9 June 2002 after commencing this action. The plaintiff is his daughter who is also the executor of his Will. Ford is one of a number of defendants whose actions, it is said, caused Mr Rudler to be exposed to asbestos and to suffer injury.
Before considering in detail the basis upon which Ford seeks to strike out the minute, I simply note the following general propositions regarding the striking out of pleadings.
A statement of claim will be struck out on the grounds that it fails to disclose a reasonable cause of action only in cases where the case advanced is not arguable. Care must be exercised in this respect so as to ensure that the plaintiff is not improperly deprived of his or her opportunity to have the matter go to trial. It is also important to avoid stifling the development of the law by summarily rejecting claims where there is a reasonable possibility that, as the law develops, it will find that a cause of action will lie. These propositions are clear from Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986.
An action is clearly frivolous if it is obviously unsustainable and an abuse of the process of the Court - Young v Holloway (1895) P 87 at 90. As regards the circumstances in which a pleading may cause prejudice, embarrassment and delay, according to Cairns: Australian Civil Procedure, 3rd ed, page 194:
"Prejudice, embarrassment and delay in pleading is a single concept, used in relation to pleadings which do not state the allegations sufficiently clearly against the opposite party. The opponent is left in doubt about what is alleged. Such pleadings are said to be embarrassing and to delay and prejudice the fair trial of the action."
Turning now to the application itself, Ford seeks to strike out the minute as a whole, or alternatively, certain paragraphs. Before dealing with those paragraphs complained of in turn, I will refer briefly to other paragraphs of the minute that set out the background to the claim against Ford.
Paragraph 10 of the minute pleads in this respect that during "the period" (defined in par 7 as being between the period from 1949 to 1974), Ford "manufactured and/or supplied asbestos brake linings and components and/or constructed and/or manufactured and/or supplied motor vehicles the components of which included asbestos brake linings and components". For the purposes of these reasons, I will simply refer to those various materials and products as "asbestos products".
By par 12 it is pleaded that also during the period from 1949 to 1974 the deceased was employed as a motor mechanic in Boyanup. In the course of that employment, according to par 13, the defendant "cleaned and/or handled asbestos brake linings and components and was exposed to and inhaled asbestos dust, particles and fibres". The particulars given in that respect are as follows:
"PARTICULARS OF THE DECEASED'S WORK DUTIES IN WHICH THE DECEASED WAS EXPOSED TO AND INHALED ASBESTOS DUST AND FIBRES
(a)The Deceased's work duties included servicing motor vehicles, in the course of which the Deceased:
(i)used compressed air to blow out the dust from each brake drum.
(ii)inspected, removed and/or replaced asbestos brake linings.
(iii)fitted to the motor vehicles asbestos brake linings.
(iv)handled asbestos brake linings by filing and/or grinding back the edges of the asbestos brake linings so they could be fitted into the brake drum.
(b)The Deceased's work duties included regularly dry sweeping the floor of the work areas of the garage after the motor vehicles were serviced.
(c)The Deceased performed his work duties in the vicinity of fellow employees also employed as motor mechanics and who also cleaned, handled and/or worked asbestos brake linings and components."
The plaintiff then pleads claims against the various defendants in turn.
So far as Ford is concerned, par 26 of the minute pleads as follows:
"26.Further and/or in the alternative, the asbestos brake linings and components cleaned, handled and/or worked by the Deceased and/or the Deceased's fellow employees as pleaded in paragraph 13 hereof were asbestos brake linings and components manufactured and/or supplied by the Fourth Defendant and/or asbestos brake linings and components contained in motor vehicles manufactured and/or supplied by the Fourth Defendant."
I do not understand there to be any great complaint by Ford in relation to the minute as pleaded to this point.
Paragraph 27 of the minute then seeks to plead the state of Ford's knowledge in relation to asbestos. It is pleaded as follows in par 27:
"27.At all material times, the Fourth Defendant, as manufacturer and/or supplier of the asbestos brake linings and components and/or manufacturer and/or supplier of motor vehicles containing asbestos brake linings and components knew or ought to have known that:
(a)Inhalation of asbestos fibres and dust was extremely injurious to human health and caused amongst other diseases asbestosis, lung cancer, pleural disease and mesothelioma.
(b)The asbestos brake linings and components manufactured and/or supplied by it and/or contained in the motor vehicles manufactured and/or supplied by it would, in the course of the cleaning, handling and/or working of the same be likely to release asbestos fibres and dust.
(c)Persons working as motor mechanics, including the Deceased, would be exposed to asbestos fibre and dust as a result of the cleaning, handling and/or working of the asbestos brake linings and components manufactured and/or supplied by it and/or contained in motor vehicles manufactured and/or supplied by it may as a result of that exposure suffer injury unless measures were taken to prevent or minimise the release of asbestos fibres and dust into the atmosphere and/or inhalation of the same.
(d)If the Fourth Defendant did not provide any warning on the asbestos brake linings and components manufactured by it and/or contained in motor vehicles manufactured by it or otherwise, it was unlikely that any or any sufficient measures would be taken to prevent release of asbestos fibres and dust into the atmosphere and/or inhalation of the same by persons working as motor mechanics, including the Deceased."
Ford complains about par 27 and in particular, par 27(c). It is said that there is no link pleaded between the manufacture by Ford of asbestos products and the foreseeability of the deceased, or the class to which he belonged, being exposed to asbestos as pleaded in par 27(c). In the course of argument it was put by counsel for Ford that there is "no sufficient factual connection which demonstrates why its forseeable that a motor mechanic in country Western Australia is going to come into contact with these vehicles or components" - T 71.
I assume in this respect that Ford's position is that the plaintiff should plead the facts that would establish that Ford knew, or ought to have known, that its asbestos products would have been used by a mechanic such as the deceased.
I do not accept this objection. The plaintiff was, for an extended period, a motor mechanic in country Western Australia. Ford manufactured and supplied asbestos products for use in motor vehicles and motor vehicles themselves that contained asbestos products. It reasonably follows that such products would be handled or worked upon by mechanics such as the deceased and I am not persuaded that it is necessary for the plaintiff to plead any additional matters with a view to establishing this link.
Paragraph 28 of the statement of claim then goes on to plead the duty said to be owed by Ford to the deceased. It is pleaded as follows:
"28.As a result of matters hereinbefore pleaded at paragraphs 13, 26 and 27, the Fourth Defendant, as manufacturer and/or supplier of the asbestos brake linings and components and/or manufacturer of motor vehicles the components of which included asbestos brake linings and components was under a duty to take all reasonable care:
(a)To issue appropriate warnings to motor mechanics, including the Deceased and the Deceased's fellow employees who cleaned, handled and/or worked asbestos brake linings and components; and/or employers of motor mechanics, including the Deceased's employer in the employment, who purchased and/or received asbestos brake linings and components and/or motor vehicles the components of which included asbestos brake linings and components, that handling, working and/or cleaning asbestos brake linings and components was extremely injurious to human health and cause amongst other diseases asbestosis, lung cancer, pleural disease and mesothelioma.
(b)To issue appropriate warnings to motor mechanics, including the Deceased and the Deceased's fellow employees who cleaned, handled, and/or worked asbestos brake linings and components; and/or employers of motor mechanics, including the Deceased's employer in the employment, who purchased and/or received asbestos brake linings and components and/or motor vehicles the components of which included asbestos brake linings and components that it was essential that measures be taken when handling, working and/or cleaning asbestos brake linings and components to prevent and/or minimise the release of asbestos dust and fibres into the atmosphere and/or inhalation of same."
Three objections are made to this paragraph. First, it is said that the plaintiff, in pleading that a duty was owed, is pleading a matter of law.
I do not accept that there is anything objectionable in pleading the existence of a duty of care. According to Bullen & Leake & Jacob's "Precedents of Pleadings", 14th ed, at 75‑02 "it is a question of law and fact as to whether or not a duty of care arises". Further, at 75‑05 it is stated that "it is not sufficient to assert that a duty of care was owed. The basis for the existence of a duty of care must be pleaded". Consistent with that approach the usual practice, as I understand it, is to plead the existence of a duty, the basis for the existence of that duty, and the nature of that duty. This is as pleaded by the plaintiff with sufficient particularity to enable Ford to understand the case alleged against it.
The second objection is that the plaintiff does not plead to whom the duty in question was owed. Whilst it is said that there was a duty to warn various persons of certain matters, it is not pleaded that the duty was owed to the deceased. I accept this objection. This must be pleaded.
The final objection relates to the way in which the duty owed by Ford is set up and whether it is contrary to the approach referred to by the High Court in Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54. Essentially, the complaint is that the duty said to have been owed by Ford to the deceased has not been formulated by reference to the foreseeable risk of harm to the deceased, but by reference to the alleged breach, namely, that the deceased suffered injury due to asbestos exposure. It is the case that that is not the correct way to formulate a duty of care. The following was said in this respect by Gummow and Hayne JJ in Graham Barclay Oysters Pty Ltd v Ryan at par 194:
"A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper enquiry as to breach. That enquiry involves identifying, with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk."
I do not consider that the plaintiff's approach runs contrary to this. Whilst the plaintiff has pleaded in par 13 the fact of the deceased's exposure to asbestos and resultant injuries, the duty pleaded in par 28 is formulated by reference to par 27, which sets out what is referred to in Graham Barclay Oysters Pty Ltd v Ryan as "the reasonably foreseeable risk". In other words, the plaintiff has pleaded in par 27 that Ford knew or ought to have known of the dangers posed by asbestos inhalation and that mechanics such as the deceased would be exposed to asbestos by reason of the handling of Ford's asbestos products. The plaintiff goes on to plead in par 28 what Ford should have done by way of response to that. In my view that is an acceptable way of pleading the case.
It follows that I accept that par 28 is defective but only by reason of the failure to plead to whom the duty of care was owed. I would strike out par 28.
By par 29 the plaintiff pleads Ford's breach of the duty pleaded in par 28. It does so in the following terms:
"29.In breach of the duty pleaded in paragraph 28 hereon, the Fourth Defendant negligently exposed the Deceased to the risk of inhalation of and the inhalation of, asbestos dust and fibres:
PARTICULARS OF THE FOURTH DEFENDANT'S NEGLIGENCE
(a)Failed to warn the Deceased and/or the Deceased's fellow employees who cleaned, handled and/or worked asbestos brake linings and components:
(i)against using compressed air to clean brake drums, including asbestos brake linings and components.
(ii)against filing and grinding asbestos brake linings and components.
(iii)against dry sweeping work areas in which asbestos brake linings and components were cleaned, handled and/or worked.
(b)Failed to warn the Deceased's employer in the employment, who purchased and/or received asbestos brake linings and components and/or motor vehicles the components of which included asbestos brake linings and components:
(i)against using compressed air to clean brake drums, including asbestos brake linings and components.
(ii)against filing and grinding asbestos brake linings and components.
(iii)against dry sweeping work areas in which asbestos brake linings and components were handled and/or cleaned.
(c)Failed to advise the Deceased and/or the Deceased's fellow employees who cleaned, handled and/or worked asbestos brake linings and components:
(i)(sic) the use of wetting or damping down cleaning methods using water and a wetting agent such as detergent.
(ii)(sic) the use of an industrial vacuum cleaner fitted with an adequate filter system when cleaning out brake drums and/or cleaning up work areas in which asbestos brake linings and components were cleaned, handled and/or worked.
(iii)(sic) the use of a respirator when handling, filing, grinding and/or cleaning asbestos brake linings and components.
(d)Failed to advise the Defendant's employer in the employment, who purchased and/or received asbestos brake linings and components and/or motor vehicles the components of which included asbestos brake linings and components:
(i)(sic) the use of wetting or damping down cleaning methods using water and a wetting agent such as a detergent.
(ii)(sic) the use of an industrial vacuum cleaner fitted with an adequate filter system when cleaning out brake drums and/or cleaning up work areas in which asbestos brake linings and components were cleaned, handled and/or worked.
(iii)(sic) the use of a respirator when handling, filing, grinding and/or cleaning asbestos brake linings and components.
(iv)(sic) the use of adequate and/or any ventilation systems to prevent or minimise the risk of the Deceased inhaling asbestos dust and fibres."
I have a number of difficulties regarding this paragraph. The breach alleged appears to bear no relationship to the duties said to be owed. The duties in par 28 involve the issuing of warnings regarding the handling of asbestos products and their harmful nature and the importance of taking measures to prevent or minimise the release of asbestos fibres and dust and inhalation of the same whereas the breach alleged concerns the negligent exposure of the deceased "to the risk of inhalation of and the inhalation of, asbestos dust and fibres". The duty said to be owed was not to avoid exposing the deceased to the inhalation of asbestos dust and fibres or the risk of that, as is suggested by par 29.

Further, the particulars to par 29 deal in part with Ford's failure to warn the deceased, his fellow employees and the deceased's employer against the use of compressed air to clean brake drums, the filing and grinding of asbestos brake linings and the dry sweeping of work areas. It is implicit in this that Ford was aware or should have been aware of these work practices and should therefore have warned the deceased, his fellow employees and his employer against their use. However, this is not pleaded. All that is pleaded as regards Ford's knowledge in this respect is as set out in par 27(c) and (d), namely, that mechanics such as the deceased would be exposed to asbestos while handling its asbestos containing products and could suffer injury unless measures were taken to prevent or minimise the release of asbestos fibres and dust and the inhalation of the same, and further, that if Ford did not provide any warnings, it was unlikely that any sufficient measures would be taken by mechanics such as the deceased.
The final difficulty with par 29 arises by reference to par 13 which, as I have said, pleads the deceased's exposure to and the inhalation of asbestos dust, particles and fibres in the course of his employment. There is nothing pleaded in par 29 to link the "risk of inhalation of and the inhalation of, asbestos dust and fibres" to the exposure and inhalation pleaded in par 13. This, I think, gives rise to embarrassment.
For these various reasons I consider that par 29 of the minute cannot stand.

Paragraph 34

Paragraph 34, insofar as it relates to Ford, pleads that "… as a result of the breach of duty of the Fourth Defendant as hereof (sic) pleaded in par 29 … the Deceased has suffered injury" which is particularised as malignant mesothelioma, respiratory degeneration, loss of lung function and pain, shock, anxiety and depression.
Bearing in mind the conclusion I have reached in relation to par 29, I do not think that this paragraph can stand against Ford.
There is one further matter that I should deal with regarding par 34. Ford says that consistent with the comments of Kirby J in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 at 482 (as referred to by Ipp J in Prast v Town of Cottesloe [2000] WASCA 274), the plaintiff must establish that had Ford fulfilled the duty owed to the deceased by providing the warnings pleaded in par 28, the deceased's injuries would have been avoided. The test in this respect is subjective according to Ipp J in Prast at par 54. It follows, according to Ford, that in a "failure to warn" case such as this, the plaintiff must establish that the deceased would not have suffered the injuries had the requisite warnings been provided and plead the steps that the deceased would have taken in response to the warnings had they been given by Ford. These are said to be material facts. Ford's concern in this respect is that the plaintiff, in seeking to establish at trial that the injuries would have been avoided had the warnings been given, will adduce evidence as to the steps that would have been taken by the deceased had he been given those warnings. The evidence may be, for example, that the deceased would have worn a respirator or have wet certain areas to limit dust. It is said that if these matters are not pleaded at this stage, Ford will be taken by surprise at trial.
As indicated by Hasluck J in Chandler v Water Corporation [2001] WASC 166:
"A party to civil litigation is entitled to a statement of the opponent's case in sufficiently clear terms to allow the opposing party the fair opportunity to meet the case being advanced. An action may not be pleaded in general terms and must be pleaded with particularity: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 705. The purpose of pleadings and particulars is to concentrate the issues of fact and to prevent surprise and consequent delay: Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 221."
Pursuant to O 20 r 8(1) of the Rules of the Supreme Court, a statement of claim must set out the material facts relied upon. According to Scott LJ in Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712:
"The word 'material' means necessary for the purpose of formulating a complete cause of action; and if one 'material' fact is omitted, the statement of claim is bad …"
I accept Ford's proposition in this respect. It is the case that the plaintiff must show that had the pleaded warnings been given by Ford, then the deceased would not have suffered injury. This could only be because the deceased would have acted in a particular way or taken certain action in response to those warnings, such as by using a respirator. If that is the case then it should be pleaded by the plaintiff, otherwise Ford will be taken by surprise at trial.

Conclusion

For the reasons set out above, I am of the view that par 28, 29 and 34 (insofar as it relates to Ford) of the minute are defective and cannot stand. These paragraphs are so central to the statement of claim that in my view the pleading as a whole cannot stand as against Ford. Bearing in mind the doubt set out in the beginning of these reasons as to the precise status of the minute, I will hear from the parties as to the appropriate orders to be made in light of these reasons.