Cooke v Bayside Health & Ors - [2008] VSC 368

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5306 of 2008

DIANA COOKE	Plaintiff
v
BAYSIDE HEALTH	First Defendant
and
AMACA PTY LTD (ACN 000 035 512)	Second Defendant
and
SELTSAM PTY LTD (ACN 000 003 734)	Third Defendant

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JUDGE:	Kyrou J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2008
DATE OF JUDGMENT:	19 September 2008
CASE MAY BE CITED AS:	Cooke v Bayside Health
MEDIUM NEUTRAL CITATION:	[2008] VSC 368

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Discovery – adequacy of affidavit of documents – documents donated to the State Library of New South Wales – further affidavit ordered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Gordon	Slater & Gordon
No appearance for the First Defendant
For the Second Defendant	Mr G Watson SC and Mr C Winneke	Dibbs Abbott Stillman Lawyers
No appearance for the Third Defendant

HIS HONOUR:

Introduction and summary

This is an application by the plaintiff, Diana Cooke, under Order 29.08 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) for an order compelling the second defendant, Amaca Pty Ltd (“Amaca”), to file and serve a further affidavit of discovery.

For the reasons set out in this judgment, I have decided to uphold the plaintiff’s application in part and to order Amaca to file a further affidavit of discovery.

Issues in the proceeding

The proceeding involves claims for compensation against the defendants arising from the plaintiff contracting mesothelioma allegedly as a result of inhaling asbestos dust from products that were supplied by Amaca and the third defendant, Seltsam Pty Ltd. The plaintiff alleges that those products were located in her former workplace at the Alfred Hospital (whose liabilities have been assumed by the first defendant, Bayside Health) in the period 1981-1983 and in her former homes in the period 1985-1986.

In her amended statement of claim dated 15 September 2008, the plaintiff alleges that by 1980, Amaca had knowledge that inhaling asbestos dust caused mesothelioma. A number of documents are relied upon in support of the alleged knowledge, including correspondence between Amaca and various Health Departments, published medical articles and documents issued by medical research bodies. The plaintiff alleges that Amaca acquired further knowledge of the dangers of inhaling asbestos dust between 1980 and 1985.

The plaintiff alleges that as a result of the abovementioned knowledge, Amaca owed a duty to all persons whom it could foresee might be harmed by any use of its asbestos products which caused the release of asbestos dust, and that this duty required Amaca to stop using asbestos in its products and to warn the plaintiff and others who might be exposed to asbestos dust released from Amaca’s products of the dangers of asbestos inhalation. The plaintiff alleges that Amaca breached its duty to the plaintiff and seeks damages. Amaca’s defence either denies or does not admit the plaintiff’s substantive allegations.

Due to the plaintiff’s medical condition, the proceeding has been listed for trial next month.

Further discovery sought by plaintiff

Amaca has filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] VSC 368
Decision Date: 19 September 2008

CaseChat Overview and Summary

The matter before the court involved a claim by the plaintiff, Cooke, against Bayside Health and others. The plaintiff alleged that she suffered injuries due to the defendants' negligence during a medical procedure. The defendants, in turn, disputed the plaintiff's claims and sought to argue that the plaintiff's injuries were pre-existing or unrelated to the procedure in question. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the affidavit of documents provided by the plaintiff was sufficient or whether further documents were required to ensure a fair trial. Specifically, the court needed to determine if the documents that had been donated to the State Library of New South Wales were adequately disclosed in the affidavit. The defendants argued that the affidavit failed to mention certain documents that were pertinent to the case and that their absence prejudiced their ability to defend the claim adequately.

The court found that the affidavit of documents did not adequately account for all relevant documents, particularly those that had been donated to the State Library of New South Wales. The court held that the defendants had not been given a fair opportunity to review and respond to all relevant evidence. Consequently, the court ordered that a further affidavit of documents be filed by the plaintiff, ensuring that all relevant documents, including those donated to the State Library, were properly disclosed. The court emphasised the importance of full disclosure to maintain the integrity of the judicial process and to ensure that all parties had an equal opportunity to prepare their cases.

The final orders included a direction for the plaintiff to file an amended affidavit of documents within a specified timeframe, ensuring that all relevant documents, including those donated to the State Library, were fully disclosed. The court scheduled a further hearing to review the adequacy of the amended affidavit and to progress with the trial.

Orders