DAVIES v Wallaby Grip Ltd

[2011] SADC 54

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Application)

In the Estate of LATE ALLEN SWANSON

DAVIES v WALLABY GRIP LTD

[2011] SADC 54

Judgment of His Honour Judge McCusker

15 April 2011

PROCEDURE

Leave sought to administer pretrial examination by written questions on the defendant - pleadings deny association between deceased's illness or death and his exposure to asbestos at work - specification of asbestos products used at issue - particulars of the deceased worker's employ with the defendant at issue - nothing advanced by discovery of documents and plaintiffs Notice to Admit - discussion of authorities indicating approach to the exercise of discretion - leave given to administer specified questions - Rule 150 District Court Civil Rules 2006.

Dust Diseases Act 2005 s8; District Court Civil Rules 2006 R150, R150(1) and R150(5); LocalCourt Rules 1970 R127, referred to.
Barker v Nominal Defendant Unreported District Court Adelaide - 29.8.89; Wyong Shire Council v Shirt (1980) 146 CLR 40; Berry v Autlas Pty Ltd [1997] 14 NSWCCR 266; Pearce v Hall (1989) 52 SASR 568, considered.

In the Estate of LATE ALLEN SWANSON
DAVIES v WALLABY GRIP LTD
[2011] SADC 54

1. By Interlocutory Application dated 17 February 2011 the plaintiff seeks leave pursuant to Rule 150 to administer “Pre-trial Examination by Written Questions” upon the defendant. That application is opposed by the defendant.

2. Rule 150 reads as follows:-

   “150-Pre-trial examination by written questions

   (1)     The Court may, on application by a party to an action, make an order for the pre-trial examination of another party to the action (that is, an order requiring the other party (the respondent) to supply before the trial written answers to written questions formulated by the applicant).

   (2)     Before an application for an order under this rule is heard by the Court, the applicant must-

   (a)     file the written questions in the Court; and

   (b)     serve a copy of the application and the written questions on the party from whom the answers are required (the respondent).

   (3)     An application for the pre-trial examination of a party must be made after the close of pleadings but before a date falling 28 days after all parties have made disclosure of documents.

   (4)     Once the Court has made an order for the pre-trial examination of a party, no further order will be made on the application of the same applicant for the examination of the same respondent unless the Court is satisfied that there are special reasons for the further order.

   (5)     If the respondent is a company, the questions must be answered by an officer of the company with authority to answer the questions on its behalf and the Court may, if it thinks fit, nominate a particular officer to answer the question on behalf of the company.”

3. The Rule gives the Court a discretion. However the authorities indicate how that discretion should be exercised. In particular the decision of Pearce v Hall (1989) 52 SASR 568). While that case concerned Rule 127 of the Local Court Rules 1970 the Rule in that form first introduced the notion of interrogatories being administered only upon leave. This contrasted with the previous situation when administering interrogatories was a process preparatory to trial available to either party without the need for obtaining leave.

4. Pearce v Hall emphasised the need to show difficulty in the due preparation for trial without being able to interrogate. Moreover that the alternatives to administering interrogatories have not resolved those difficulties of preparation. While the Court stated each case was to be considered on its individual merits, it adopted the following passage from Barker v Nominal Defendant  unreported District Court Adelaide, 29.8.89  as representing the correct approach:

   “In view of the many other interlocutory processes and other means of obtaining evidence now generally available, it should only be in fairly exceptional circumstances that any need for interrogation should arise once these other avenues have been properly explored.”  Pearce at 574

5. In the matter before me, the individual merits are taken from the various affidavits and documents on the file. The claim is for damages and loss suffered when the late Mr Swanson contracted and then died of lung cancer. In the opinion of Dr ABX Breslin, though the worker was a heavy smoker, the synergies created by the dual inhalation of tobacco smoke and asbestos fibres caused that lung cancer and death. Dr Breslin’s opinion is apparently based upon the assumption of as much as 54 fibre/ml years exposure as well as exposure to the amphibole form of asbestos. Assuming these conditions, in Dr Breslin’s opinion it was more probable than not that asbestos exposure made a significant contribution to the development of the lung cancer. The defendant denies that any exposure to asbestos while in its employment in any way caused or contributed to the lung cancer.

6. I am informed, and it is not denied, that the defendant formerly traded as Bells Asbestos and Engineering Australia Ltd and was a significant manufacturer and supplier of various asbestos products. These products were in the main for construction and insulation purposes. On 11 May 2010 the defendant filed a List of Documents. Nothing was discovered by the defendant which disclosed in any way what type of asbestos in what proportions was contained in its various products. (Tr p 9) This question of the make-up of the products, as will be appreciated, will be vital to the plaintiff’s case.

7. Apart from obtaining discovery, the plaintiff issued two “Notice to Admit Facts”. The first was delivered on 11 March 2010 and responded to on 26 March 2010. The second was delivered on 14 May 2010 and responded to on 1 June 2010.

8. In the first Notice, the defendant while admitting between 1962 and 1965 it employed more than 20 persons, said that in respect to all other matters touching the deceased’s employment, it was not in a position to admit or deny any assertions because employment records for the period either no longer existed or following search could not be found. It otherwise admitted it had been in the industry of installing insulation products containing asbestos within South Australia including at the Whyalla Shipyards and that it had made respiration masks available for its employees during the period. A question relating to other compensation claims by former employees of the defendant in respect to asbestos related diseases was in the course of argument before me, was resolved and does not need my decision.

9. In the second Notice the plaintiff asked if the defendant was aware that inhaling asbestos dust and fibres could cause disease of the lung as at 1962 and if not at least since 1965. The defendant answered that the question was vague but that it was aware “that heavy and prolonged exposure to asbestos” might cause respiratory complaint. The next two questions purported to use the wording of the “Shirt” calculus Wyong Shire Council v Shirt (1980) 146 CLR 40 and were refused on that ground. The next two questions asked whether there were measures that might eliminate or reduce the risk of lung disease from asbestos dust in 1965 and then 1962. The defendant admitted there were.

10. The plaintiff then asked if during the period between 1962 and 1965 the defendant installed materials containing asbestos in ships located at the Whyalla Shipyard and whether this exposed their employees to asbestos dust and fibre. The defendant admitted this, as well as admitting in the same period it undertook installing prefabricated pipe sections containing asbestos on those ships. What then followed was a set of nine questions (questions 10-12, 14-16 and 18-20) directed at whether the asbestos used contained amosite or crocidolite. The defendant replied it did not know.

11. Four questions followed asking whether warnings were given to the defendant’s employees between 1962 and 1965. The defendant answered no warnings were given because it, the defendant, had no knowledge of the dangers of the use of asbestos. Moreover it had not required the wearing of masks for the same reasons. As for ventilation so far as work in the Whyalla Shipyards went it had no control of the worksite, it being under the control of BHP or the Commonwealth. Finally it admitted awareness of asbestos free insulation products in both 1965 and 1962 which indeed it supplied itself. It is surmise to wonder where such information as set out above, going to the defendant’s defence, was sourced. It was not suggested it was sourced from the discovered documents. This perhaps suggests another source of evidence about the matters at issue in this matter. But as I have said it is surmise.

12. The draft interrogatories are directed at a number of topics. Questions (1) to (8) are directed at the types of asbestos which were contained in the defendant’s products. That is whether they contained, in each case, amosite, crocidolite or chrysotile asbestos. If so what was the proportion in each case. The next question related to a topic I understand is no longer in dispute. Questions (10) and (11) relate to the details of the deceased’s employment and whether he was exposed to asbestos. If so when and was respiratory protection provided. Questions (12) to (19) relate to knowledge to the dangers of asbestos dust either actual or imputable to the defendant prior to 1966. Lastly questions (20) and (21) relate to preventability particularly in the form of respirators and ventilation available prior to 1966.

13. In preparing the plaintiff’s case the plaintiff’s representatives would I presume have drawn some form of advice on evidence. In other words the plaintiff’s representatives would have worked out what needed to be proved and what evidence was available to do so. With regard to the constituent parts of the asbestos containing products, manufactured or used by the defendant, those representatives might well have expected to be able to get those specifications from the defendant by interlocutory means. Even if the documents indicating the constituent parts of the asbestos products no longer existed it does not mean it is no longer within available knowledge. That is from other sources such as the defendant’s former employees or non company documents.

14. The Notices to Admit Fact failed to elicit anything on this topic. As Mr Stuart points out (Tr P 3) interrogatories place a greater obligation on the defendant, particularly in light of Rule 150(5), than might be seen to be the case for a Notice to Admit Facts. The importance of the issue to the plaintiff’s case is self evident. Not only is Dr Breslin’s opinion predicated upon it but that doctor’s opinion in turn may provide important access to the evidentiary presumptions in s 8 of the Dust Diseases Act. (see subsection (1)(a) and (b).  In my opinion the proper preparation of the case requires the plaintiff to be allowed to issue interrogatories (1) to (8).

15. As indicated the defendant’s position is that it has no documents in respect the plaintiff’s employment. In my view similar features apply here as apply to the asbestos specifications of the defendant’s products. There are other avenues by which the defendant might obtain the information. More so in this case with the difficulty presented by the decease of the person who would normally provide that information. (see Berry v Autlas Pty Ltd [1997] 14 NSWCCR 266). The questions as to knowledge are also vital in the preparation of the case. I recognise that there is a reversed onus indicated in section 8(2). But that in itself does not provide a substitute for the steps appropriate in a diligent and appropriate preparation of the case. The pertinent “knowledge” of risk is singularly in the possession of the defendant, a fact which the statutory provision acknowledges. As for items (20) and (21), I regard these as matters equally available from other sources and I would not give leave in respect to them. Accordingly I make the following orders:

    1.The time provided for in Rule 150(1) is extended to allow the application for pre-trial examination of the defendant in these proceedings.

    2.The application is allowed insofar that I order the defendant to supply written answers to the questions formulated by the plaintiff in paragraphs (1) to (8) and paragraphs (10) to (19) as in draft attached to the affidavit of Mr A R Stuart sworn 14 February 2011 and filed herein within 28 days of the date of this decision.

    3.Liberty to either party to be further heard regarding the choice of the deponent to answer the questions described in sub-rule (5).

    4.      Costs in the cause.