Donald Laurie v Amaca Pty Ltd and ors (2)

[2006] NSWDDT 35

Dust Diseases Tribunal

of New South Wales

CITATION:	Donald Laurie v Amaca Pty Ltd and ors (2) [2006] NSWDDT 35
PARTIES:	Donald Laurie (plaintiff) Amaca Pty Ltd (first defendant) Commonwealth of Australia (second defendant) British American Tobacco Australia Services Ltd (third defendant)
MATTER NUMBER(S):	6057 of 2006
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Dust Diseases Tribunal :- particulars
CASES CITED:	R v Associated Northern Collieries (1910) 11 CLR 738; Bailey v FCT (1977) 136 CLR 214; Sims v Wran (1984) 1 NSWLR 317
DATES OF HEARING:	13/9/06
DATE OF JUDGMENT:	09/28/2006
LEGAL REPRESENTATIVES:	Mr J T Rush QC with Mr B F Quinn instructed by Slater and Gordon appeared for the plaintiff Mr J C Sheller instructed by Holman Webb appeared for the first defendant Mr B R Ferrari instructed by the Australian Government Solicitor appeared for the second defendant Mr M J Leeming SC with Mr C Mantziaris instructed by Corrs Chambers Westgarth appeared for the third defendant

JUDGMENT:

RULING ON PARTICULARS

CURTIS J

1. The Plaintiff seeks orders that BATAS provide further and better particulars of paragraphs 9, 25 and 26 of its defence.

2. Paragraph 9 of the defence responds to paragraph 25 of the statement of claim in which the plaintiff pleads that:

"At all material times during the smoking period BATAS knew or ought to have known that the nicotine contained in the tobacco products was addictive"

In paragraph 9 BATAS takes issue with the word "addictive", and pleads as follows:

(a) it admits that at all material times during the smoking period the tobacco products contained nicotine;

(b) it admits that some smokers of tobacco products can find smoking difficult to quit;

(c) otherwise, it denies each allegation therein.

3. Paragraphs 25 and 26 of the defence raise the issue of voluntary assumption of risk and plead that:

25. During-

(a) the smoking period; and

(b) the post-1971 period-

the plaintiff knew that-

(i) smoking could cause lung cancer and other diseases;

(ii) smoking was hazardous to the smokers health;

(iii) smoking was an activity which was difficult to quit; and

(iv) in order to avoid the health risks associated with smoking, it was necessary for him to quit smoking tobacco.

26. If (which is denied) the plaintiff's injuries were caused by smoking tobacco products during the smoking period, then by smoking tobacco products during the smoking period the plaintiff voluntarily accepted the risks referred to in paragraph 25 hereof.

4. By letter of 19 May 2006 the plaintiff's solicitors in these terms sought particulars of the defence:

Under paragraph 9 of the Defence

State whether it it is admitted that during the smoking period BATAS knew "that some smokers of tobacco products can find smoking difficult to quit" and, if so, state:

(a) the means by which BATAS acquired such knowledge;

(b) if such knowledge was acquired by way of a publication or document:

(i) the title of the same;

(ii) the author of the same;

(iii) the name of the journal or other publication in which the same was published (if at all);

(iv) the date of publication;

(c) the date at which BATAS acquired such knowledge.

Under paragraph 25

Specify the "other diseases" referred to in (i).

Specify the way or ways in which smoking was "hazardous" to the smokers health as suggested in (ii).

Specify the "health risks” referred to in (iv).

State the facts, matters or circumstances on the basis of which it is alleged that:

(a) during the smoking period the plaintiff knew that:

(i) smoking could cause lung cancer;

(ii) smoking could cause other diseases;

(iii) smoking was hazardous to the smoker’s health;

(iv) smoking was an activity which was difficult to quit

(v) in order to avoid the health risks associated with smoking, it was necessary for him to quit smoking tobacco;

(b) during the post-1971 period the plaintiff knew that;

(i) smoking could cause lung cancer;

(ii) smoking could cause other diseases;

(iii) smoking was hazardous to the smoker’s health;

(iv) smoking was an activity which was difficult to quit;

(v) in order to avoid the health risks associated with smoking, it was necessary for him to quit smoking tobacco.

Under paragraph 26

State the facts, matters, circumstances and things on the basis of

which it is alleged that the plaintiff voluntarily accepted each of

the risks referred to in paragraph 25.

5. By letter of 7 June 2006 the solicitors for BATAS refused to provide the information sought. In relation to paragraph 9, upon the basis that "the information sought is irrelevant to any issue in dispute in the proceedings", and in relation to paragraphs 25 and 26, upon the grounds that "the material facts are sufficiently alleged in the defence", and further that, "BATAS objects to particularising allegations of actual knowledge".

The law

6. In R v Associated Northern Collieries (1910) 11 CLR 738, 740 -1, Isaacs J said:

I take the fundamental principle to be that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms "surprise," but he is not entitled to be told the mode by which the case is to be proved against him.

7. In Bailey v FCT (1977) 136 CLR 214, 220 Mason J. said:

An order for particulars does no more than require the Commissioner to furnish in advance of the hearing, particulars of the case which he intends to present in court. Such an order does not require the Commissioner to disclose the evidence by which he proposes to support his case or the source of information which comes into his possession.

7. I find the most useful statement of principle to be that by Hunt J in Sims v Wran (1984) 1 NSWLR 317, 321 - 2, a defamation case where he said:

There is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is to be proved. It all depends upon what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise…

9. In paragraph 9 of its defence, BATAS denies the allegation made by the plaintiff that the nicotine contained in the tobacco products was addictive. However, by conceding that some smokers of tobacco products can find smoking difficult to quit, BATAS implicitly identifies the meaning and import of the word addictive as in issue between the parties. This is not a contest in which dictionaries can assist. That which is in dispute is not the particular word or words apt to describe the chemical effect of nicotine upon the brain, but rather the effect which that chemistry has upon the conduct of the person said to be addicted.

10. Nicotine did not cause Mr Laurie's lung cancer. Smoking did. The issue raised by paragraph 25 of the statement of claim and paragraph 9 of the defence is whether, at the time BATAS manufactured or distributed the cigarettes which are alleged to have caused Mr Laurie's addiction to, or dependence upon, nicotine, it knew, or ought to have known, that the chemical effect of nicotine was to inhibit the ability of a smoker to cease smoking to such an extent that BATAS, acting reasonably, should have taken steps to either warn Mr Laurie of this effect, or protect him from its consequence.

11. The plaintiff pleads that Mr Laurie became addicted to cigarettes more than 50 years ago. This is a case in which that which BATAS knew or ought to have known is to be found in contemporaneous documents rather than first hand accounts. After extensive discovery, BATAS should be in possession of no relevant document which has not been discovered to the plaintiff.

12. The plaintiff wants BATAS to now disclose the evidence upon which it may rely to support the contention in paragraph 9 of the defence that "some smokers of tobacco products can find smoking difficult to quit". She also wants BATAS to disclose the evidence upon which it may rely to support the contention in paragraph 25 of the defence that Mr Laurie knew that "smoking could cause lung cancer", that "to avoid the health risks associated with smoking it was necessary for him to quit smoking tobacco" and further that it was "difficult to quit".

13. If any tactical onus shifts to BATAS at the close of the plaintiff's case, BATAS may then lead evidence to establish the facts pleaded. The purpose of particulars is not to prevent a party being surprised by the evidence which an opponent leads upon an issue; surprise caused by belated recognition of the strength or weakness of an opponent's case is inherent in adversarial proceedings. Rather, particulars are intended to prevent that surprise which may be caused by the failure of an opponent to spell out the purpose for which the evidence is led.

14. It is Mrs Laurie's case that the chemical effect of nicotine upon the brain inhibits the exercise of free will to such an extent as to justify legal conclusions within the rubrics of foreseeability, scope of duty, and causation. She can hardly be surprised if BATAS calls or tenders evidence to the contrary, asserting that, at the relevant time, the chemistry of nicotine was not known to suspend volition, although some smokers found it difficult to quit.

15. Similarly, Mrs Laurie cannot be surprised if BATAS leads evidence of information available in the public domain or otherwise from which it will ask the Tribunal to infer that Mr Laurie probably knew both that smoking could cause lung cancer, and that although it was hard to quit, it was necessary that he do so to avoid the risk of contracting the disease.

16. I am satisfied that the plaintiff is fairly apprised of the defences raised against her in paragraphs 9, 25 and 26 of the defence. As I understand those defences, BATAS disputes the plaintiff's contention that nicotine addiction (however that phrase is ultimately understood) determines behaviour to such an extent as to give rise to a duty on the part of BATAS to protect Mr Laurie from the consequences of that addiction. It also contends that if it was subject to any duty, Mr Laurie was sufficiently informed of both the risks of nicotine addiction and the risks of lung cancer so as to voluntarily accept those risks and absolve BATAS from all responsibility for the consequences of any breach of duty. If I am wrong in this understanding and BATAS intended by the pleading to raise different issues, it should identify those issues prior to the trial.

17. I decline to order that BATAS provide to the plaintiff further and better particulars of paragraphs 9, 25 and 26 of its defence.

18. I reserve the question of costs.

Mr J T Rush QC with Mr B F Quinn instructed by Slater and Gordon appeared for the plaintiff

Mr J C Sheller instructed by Holman Webb appeared for the first defendant

Mr B R Ferrari instructed by the Australian Government Solicitor appeared for the second defendant

Mr M J Leeming SC with Mr C Mantziaris instructed by Corrs Chambers Westgarth appeared for the third defendant