Eaton v Carrier Air Conditioning Pty Ltd (No 1)

[2004] NSWDDT 54

Dust Diseases Tribunal

of New South Wales

CITATION:	Eaton v Carrier Air Conditioning Pty Ltd and Ors (No 1) [2004] NSWDDT 54
PARTIES:	Isabella Margaret Eaton (Administrator Ad Litem representating the estate of the late George Eaton) (Plaintiff) Carrier Air Conditioning Pty Ltd (First Defendant) Amaca Pty Ltd (Second Defendant) McPhearson's Ltd (Third Defendant) Wallaby Grip Ltd (Fourth Defendant) Wallaby Grip (BAE) Pty Ltd (Fifth Defendant)
MATTER NUMBER(S):	84/03
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- PROCEDURE - miscellaneous procedural matters - other matters - Plaintiff seeks to rely on notice pursuant to Section 25B
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989
CASES CITED:	Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
DATES OF HEARING:	3 September 2004
EX TEMPORE JUDGMENT DATE :	09/03/2004
LEGAL REPRESENTATIVES:	M J Joseph, SC with R A O'Keefe instructed by Slater & Gordon appeared for the Plaintiff W S Strathdee instructed by Phillips Fox appeared for the Second defendant G M Watson, SC instructed by Cowley Hearne appeared for the Third Defendant D J Russell, SC instructed by Acuiti Legal appeared for the Fourth and Fifth Defendants

JUDGMENT:

1. Mr Joseph seeks pursuant to s 25B of the Dust Diseases Tribunal Act to rely upon a notice filed on 22 April 2003. That notice contains a recitation of matters dealt with in earlier cases.

2. S 25B provides:

(1) Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties.

3. It does not appear to me that, other than in par 16, there is a recitation of issues of a general nature previously determined by the Tribunal or on appeal; rather, there are recitations of the evidence including matters of fact which were either non controversial or conceded. It does not appear to me that they were the subject of a determination following a dispute and it is my view that, other than in respect of par 16, the notice filed on 22 April 2003 is not a valid s 25B notice. The issue recited in par 16 that mesothelioma is an injury which is one and indivisible is not relevant in this case.

4. Mr Joseph seeks also to rely upon a s 25B notice filed on 3 June 2004. In that notice are two quotations from the judgment of Beazley JA in Bendix Mintex Ply Ltd v Barnes (1997) 42 NSWLR 307 at 331 and at 332. In order to identify what issues of a general nature were decided in that case (which was heard at a time when an appeal lay from the Tribunal to the Court of Appeal on questions of fact) it is appropriate to record that the matter that was there concerning her Honour was the time at which knowledge of the dangers of asbestos became available in various fields.

5. The principal matters raised on, appeal were, Beazley JA said at 332, foreseeability and causation. In dealing with foreseeability Beazley JA at 330 said:

Professor Ferguson stated that concern in the medical research field about the risk to part-time end users of products containing asbestos did not emerge until the 1970s.

Professor Ferguson was a defendant's witness and his assertion was disputed.

6. It is apparent from her Honour's reasons that Professor Ferguson's assertion was an issue before the Court of Appeal and was determined by it. At 331 her Honour said:

In summary, therefore, the knowledge available in the field of • industrial health, at least by 1960, was that the inhalation of asbestos was dangerous.. It had been known for many years that it could cause asbestosis and by 1960 that it could mesothelioma.

7. Par 1 of the s 25B notice filed recites those words. It also recites the balance of the paragraph of her Honour's judgment in which they appear. With respect to Mr Joseph, I do not regard the balance of the paragraph as legitimately included in the notice. It seems to me to be a recitation of the basis upon which the • conclusion in the first two sentences of the paragraph which I have quoted were made. Accordingly, it is my view that only the first two sentences properly recite an issue of a general nature previously determined in proceedings on an appeal from the Tribunal.

8. Par 2 of the notice recites what is contained within sections C and D at p332 of the reasons for judgment, that is:

Although as at 1962 and through. to the 1970s there was a degree of uncertainty in the literature. about- a- number of aspects of the hazards of asbestos, its overall effect was that asbestos was dangerous and that chrysotile could not be excluded as a product which caused asbestos related diseases. It was believed that end: users, such as persons in the brake servicing industry could be at risk if exposed to dust containing asbestos fibre, although there were also studies and investigations, such as those conducted by Dr Rathus, and later by Ms Sowden, which indicated that brake service workers were not at risk because the level of dust emitted was very low. However, given that during this period, when there was a substantial body of evidence which raised explicit concerns about even low levels of asbestos exposure, it was foreseeable that there was a risk of harm to a person so exposed.

9. That paragraph of her Honour's reasons appears where she was summarising the knowledge available in the field of industrial health. Later in her reasons she dealt with knowledge available otherwise. I do not regard the paragraph that I have quoted as being, in its entirety, a recitation of an issue of .a general nature determined on an appeal from the Tribunal. Within it is reference to evidence which led her Honour to the conclusion she expressed.

10. It has been argued by Mr Russell, SC and adopted by Mr Watson, SC that by no means could anything said in the quoted paragraph be an issue of a general nature. Such an issue, it is said, must relate to the determination of a disputed question of fact and because foreseeability is a question of mixed fact and law it cannot be an issue of a general nature. I agree that s 25B applies in respect of, and only in respect of, disputed questions of fact of a general nature which were litigated and determined in proceedings.

11. There is no binding authority which refers to s 25.B of the Act: .The section has been used to avoid relitigating questions which previously have been litigated and determined. Mr Russell, SC, says, however, that is not a use which is authorised by s 25B. It is, he said, a provision which relates to leave to relitigate issues and this, he says, is confirmed, by subsection (2). That subsection provides:.

(2) In deciding whether to grant leave for the purposes of subsection (1), the Tribunal is to have regard. to:
(a) the availability of new evidence (whether or not previously available), and
(b) the manner in which the other proceedings referred to in that subsection were conducted, and
(c) such other matters as the Tribunal considers to be relevant.

12. R 9 of the Tribunal's rules provides as follows:

(1) A party who intends to rely in any proceedings on the determination in other proceedings of an issue of a general nature, as referred to M s 25B(l) of the Act, must within a reasonable time file and, serve on all other parties notice of that intention, including full particulars of the precise issue alleged to have been determined and as to when, where .and by whom the issue was alleged to have been determined.
(2) Subrule (1) does not prevent the Tribunal from determining on its own motion that an issue is an issue to which s 258(1) of the Act applies.

13. It is my view that a valid s 2513 Notice and the rules allow a party to identify issues which may not be litigated again. These provisions are intended to reduce time and costs in litigated proceedings in the Tribunal. With the passage of time certain matters which were contested issues in earlier cases are no longer litigated. No doubt this is because of a consistency of evidence and a consistency of determination of particular issues by judges of the Tribunal.

14. In my view s 25B .does not relate solely to applications for leave to relitigate .4 issues. An issue sought to be relitigated would not be within the knowledge of a party unless a notice were filed pursuant to s 25B in accordance with r 9, nor would an issue upon which a party wishes to rely be known. That is why the rule requires notice to be-given."

15. Having said that it becomes necessary, firstly, to determine what was the issue, if any, determined in the quoted paragraph from the judgment of Beazley JA. That, as it appears to me, is this:

At 1962 and through to the 1970s it was believed by those' in the field of industrial health that end users of asbestos products, such as persons in the brake servicing industry, could be at risk if exposed to dust containing asbestos fibre: During this period there was a substantial body of evidence available to those in the field of industrial health which raised explicit concerns about even low • levels of asbestos exposure and it was foreseeable that there was a risk of harm to a person so exposed.

16. Second, it is correct, as senior counsel for three of the defendants have submitted, that the concept of foreseeability is a mixed question of fact and law. Nevertheless in reciting, as she did, that in the circumstances adumbrated it was foreseeable that there was a risk of harm "to a person so exposed" her Honour was determining an issue of fact.

Accordingly, I am inclined to regard my formulation of the effect of what her Honour said in the quoted paragraph as reciting an issue of a general nature determined in proceedings on an appeal from the Tribunal.
M J Joseph, SC instructed by Salter & Gordon appeared for the Plaintiff
W S Strathdee instructed by Phillips Fox appeared for the Second Defendant
G M Watson, SC instructed by Cowley Hearne appeared for the Third Defendant
D J Russell, SC instructed by Acuiti Legal appeared for the Fourth and Fifth Defendants