De Rose v FMP Group (Aust) P/L

[2017] SADC 117

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

DE ROSE v FMP GROUP (AUST) P/L & ORS

[2017] SADC 117

Judgment of Her Honour Judge Farrell

26 October 2017

PROCEDURE

Interlocutory application seeking a third party action to be struck out or severed from the principal action.

HELD: Application to strike out or sever the third party action is dismissed

DE ROSE v FMP GROUP (AUST) P/L & ORS
[2017] SADC 117

1. This is an application filed on behalf of the plaintiff’s employer, IVECO TRUCKS AUSTRALIA PTY LTD (IVECO) seeking to have the defendant’s third party action against it struck out or severed from the principal action. The defendant manufactured brake linings.

2. The principal action is a dust diseases action by the plaintiff, a mechanic, who has been diagnosed with mesothelioma. Recent medical evidence suggests that his life expectancy is six months.  He fitted and removed brakes from trucks in the course of his employment with IVECO between 1947 and 1990. The brake linings may have contained asbestos.

3. I have decided that the defendant’s third party action against IVECO should not be struck out or severed from the principal action. I have had regard to all of the submissions and supporting evidence of the parties.

4. IVECO has not demonstrated that there is no chance of the third party action succeeding. The outcome of the action is dependent on findings of fact regarding the plaintiff’s exposure to asbestos and medical evidence regarding the cause of the plaintiff’s dust disease.

5. IVECO has not demonstrated that the third party action is an abuse of process. The plaintiff has an accepted claim for workers compensation for what is referred to as a transitional injury, to which the Workers Rehabilitation and Compensation Act 1986 (repealed)(WRCA) applies. The acceptance of that claim results from the Return to Work SA accepting that the plaintiff was exposed to asbestos during the whole of his employment, which did not conclude until 1990, after the commencement of the WRCA. The application of s54 of the WRCA limiting an employer’s liability is dependent on a factual finding that the plaintiff continued to be exposed after the commencement of that Act. The principal action has not reached a stage where such a finding could be made.

6. With respect to the argument that the third party action should be severed from the principal action I have carefully considered the interests of justice and weighed the interests of the parties. I am obligated to find the most efficient and effective means of concluding the issues between the parties.

7. In my view the interests of justice are best served in this matter by all actions being heard together. Any delay resulting from dealing with the questions together is inconsequential in the unusual circumstances of this matter.[1]

   [1]Section 10 of the Dust Diseases Act 2005:

   “The District Court or SAET (as the case may be) will determine questions of liability and quantum of liability to the plaintiff before dealing with questions of contribution between defendants or insurers unless, in the opinion of the District Court or SAET (as the case may be), any delay resulting from dealing with the questions together is inconsequential in the circumstances.”

8. The unusual aspects of this dust diseases action make the desirability of completing the principal action prior to the contribution as between the insurers being determined, or at least heard, less compelling.

9. The plaintiff’s workers compensation claim has been accepted and he has received a substantial amount of compensation. He has given his evidence. He is not in the position of many plaintiffs who have the concern, as their death approaches, of meeting expenses as a result of their illness and concern about the vindication against the wrongdoer in the litigation. This later matter is particularly pertinent because the plaintiff has given evidence that he does not recall using the defendant’s products so he is less likely to be concerned about its wrongdoing.

10. An adjournment of the hearing for three months to ensure that all parties can complete all proper enquiries will not prevent the hearing from being completed and judgment delivered in the plaintiff’s lifetime.

11. The application to strike out the third party action is dismissed.

12. The application to sever the third party action is dismissed.