Hanger v Brown Built Pty Ltd
[2009] VSC 487
•26 October 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 7954 of 2009
| RUSSELL HANGER & ORS | Plaintiff |
| v | |
| BROWN BUILT PTY LTD & ORS | Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 October 2009 | |
DATE OF JUDGMENT: | 26 October 2009 | |
CASE MAY BE CITED AS: | Hanger & Ors v Brown Built Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 487 | |
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PRACTICE – Pleadings – Personal injury – Claims for damages against two manufacturers of asbestos products – Joint liability not claimed – Whether particular of negligence based on joint liability.
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APPEARANCES: | Counsel | Solicitors |
| For the third Defendant | Mr A G Uren QC with Dr S L Keeling | Monahan & Rowell |
| For the Plaintiff | Ms S Burchell | Slater & Gordon |
HIS HONOUR:
This is an appeal by the third defendant from an order of Associate Justice Daly of 8 October 2009. By that order the associate justice dismissed the summons issued by the third defendant on 16 September by which the third defendant sought an order striking out sub‑paragraph (hh) to the particulars provided under paragraph 24 of the plaintiff’s statement of claim.
In the proceeding, the plaintiff claims damages for lung cancer and asbestosis, which he alleges he was exposed to on two separate occasions in the past. The first defendant, Brown Built Pty Ltd, was the employer of the plaintiff in periods between 1957 and 1970. During that period the plaintiff worked for the first defendant as a sheet metal worker. The second defendant, Amaca Pty Ltd, formerly known as James Hardie & Co Pty Ltd, and the third defendant, Seltsam Pty Ltd, formerly Wunderlich Ltd, manufactured and sold asbestos building products during that period.
The trial of this case is listed to commence on 19 November next. In the proceeding the plaintiff bases his claim on two periods of exposure. Firstly, he claims that in the course of his employment with the first defendant, between 1957 and 1970, he was exposed to products of the second defendant at the first defendant’s factory premises in Clifton Hill and Thornbury. He alleges that those products contained asbestos and that he suffered injury as a result of the negligence and breach of duty of care owed to him by both the first defendant and the second defendant.
The second claim made by the plaintiff, which is pertinent to this application, is pleaded in paragraphs 17 to 24 of the statement of claim. The plaintiff pleads that in 1988 and 1989, in the course of renovating his home in Bundoora, he demolished asbestos products which had been installed in about 1966 and which had been manufactured and/or supplied by the second and/or third defendants. He alleges that in the course of demolishing those products he became exposed to asbestos dust and thus has sustained injury.
The plaintiff has separately pleaded a duty of care owed to him by the second and third defendant in the second period and has pleaded separately a breach of that duty and negligence by each of the second and third defendants.
In paragraph 24 the breach is pleaded against the third defendant and, as I stated, the third defendant seeks an order striking out sub‑paragraph (hh) of the particulars of that paragraph. That sub‑paragraph, of the particulars, reads as follows:
“From July 1977 and for the balance of the exposure period, failing to request of or join with the second defendant to jointly publicise the risks and dangers of demolishing asbestos cement products in situ in homes around Australia.”
Mr Uren, of Queen’s Counsel, appears with Dr Keeling for the third defendant, has made two submissions to me in respect of that particular. First he submits that the particular, at least implicitly if not explicitly, is based on a joint but not several obligation of the second and third defendants to jointly publicise the risks and dangers of demolishing asbestos cement products. He has submitted that no basis for such a joint obligation with the second defendant has been pleaded, and accordingly that sub‑paragraph (hh) has no basis in the pleading and ought to be struck out.
Alternatively, he has submitted that the paragraph, phrased as it is, is vague and embarrassing, and that particularly by use of the word “jointly” and by requiring the second defendant to request or join with the second defendant in making a joint publication it is, of itself, vague and embarrassing.
In my view sub‑paragraph (hh) does not purport to plead or rely on a joint obligation between the second and third defendant. This is clear, first, from the structure of the pleading by the plaintiff in his statement of claim.
In paragraph 17, the plaintiff pleads the period of exposure. In paragraph 18 he pleads the exposure itself. In paragraphs 19 and 21 he pleads the basis of the duty of care asserted by him against the second defendant. In paragraphs 20 and 22 he pleads the basis of a separate duty of care which he alleges was owed to him by the third defendant.
Separately in paragraph 23 he pleads the breach of the second defendant of the duty of care owed to him by the second defendant and has specified a number of particulars of that breach.
In paragraph 24 he pleads separately the breach by the third defendant of its duty of care to the plaintiff and sets out a number of particulars to that plea.
Thus in the body of the pleading there is no assertion by the plaintiff of any joint duty of care owed to him by the third defendant.
Turning then to sub‑paragraph (hh) it is important to pay heed carefully to the drafting of that sub‑paragraph. In essence the sub‑paragraph pleads two failures by the third defendant of its duty of care to the plaintiff. The first failure is a failure by the third defendant to request the second defendant to jointly publicise the risks and dangers of demolishing asbestos products in situ in homes around Australia. That allegation on its own is a singular allegation against the third defendant and does not purport to impose any liability on the third defendant for any action or omission by the second defendant.
It is true that the sub‑paragraph does postulate that the third defendant failed to request that the second defendant join in it in a joint publication relating to the risks and dangers of demolishing cement products in domestic premises in Australia.
However, the sub‑paragraph does not, of itself, seek to impose upon the third defendant any liability for a failure by either it or the second defendant to make such a joint publication. Particularly it does not seek to visit on the third defendant any liability for the failure of the second defendant to participate in such a joint publication. The allegation made by the plaintiff against the third defendant is anterior to any such proposition. Effectively, it is no more than a particular of negligence that the third defendant failed to make a particular request of the second defendant.
From the point of view of causation, it may be difficult for the plaintiff ultimately to link the failure by the third defendant to make such a request to any damage suffered by the plaintiff. However, that is quite different to the proposition that the sub‑paragraph in any form seeks to visit any joint liability on the third defendant.
The second allegation contained in sub‑paragraph (hh) is a failure by the third defendant to join with the second defendant in the joint publication of the risks and dangers associated with demolishing asbestos cement products in domestic premises.
That allegation assumes that the second defendant either invited or requested, or stood willing to participate with, the third defendant in making such a joint publication. Thus the success or otherwise of sub‑paragraph (hh) will depend upon the plaintiff proving, firstly, that the second defendant had made such an invitation or request or was prepared to make such an invitation or request, and secondly, that the third defendant had failed to respond positively to any such invitation or request. However, the allegation is made singularly against the third defendant. It seems to me the underpinning of the allegation is that had the third defendant accepted that invitation, there would have come to pass a joint publication which might have alerted the plaintiff to the risks and dangers of demolishing asbestos cement products.
There are again a number of hurdles which the plaintiff will need to overcome in order to prove the particular of negligence specified in that way. However, it does not seem to me that in that way the sub‑paragraph does seek to visit upon the third defendant any liability for any potential failure by the second defendant to do anything in relation to the making of a joint publication. Particularly, it does not seek to visit upon the third defendant any liability for the failure for there to be a joint publication, other than the failure by the third defendant to take a positive act either by way of request or responding to a request to bring such a joint publication into being.
In this way it seems to me that the case is different to the case which was before Forrest J of Smith v Amaca Pty Ltd & Anor[1]. In that case His Honour was faced with an application by the plaintiff to amend his pleading to plead that there was a breach of duty jointly owed by the first and second defendant. No allegation of a joint duty had been properly pleaded. Thus His Honour refused to permit the amendment on the basis that it pleaded a breach of a joint duty in circumstances in which no basis had been properly laid for the existence of any such joint duty.
[1][2009] VSC 318.
In this case, as I stated, the plaintiff does not purport to plead or rely on a joint duty nor, as I have outlined, do I accept that it has sought to plead a breach of a joint duty.
While I agree with Mr Uren that the use of the word “jointly” is infelicitous in such a pleading, I do not consider that it does introduce into the pleading any sense of unintelligibility or ambiguity such as to justify striking it out. However, it would be desirable in the future if any such pleading did not contain the same word because of the potential of that word to give rise to the type of dispute which has come before me in this case.
Nonetheless, in my view, the allegation made against the third defendant in sub‑paragraph (hh) is sufficiently clear. If there were any ambiguity about it, that ambiguity has, in my view, been clarified by the letter by the third defendant’s solicitors to the second defendant’s solicitors dated 28 August 2009. It is true that a pleading itself may not be clarified by a letter. However, the part of the pleading which is under attack is not the pleading of material facts but rather the pleading of a particular and as a matter of practice, particulars have, in the past, been provided by way of letters. In my view, the response by the third defendant’s solicitor is admissible and relevant in relation to that aspect of Mr Uren’s argument.
For those reasons I do not consider that a basis has been laid for striking out sub‑paragraph (hh) of the particulars under paragraph 24 of the statement of claim and therefore the appeal of the third defendant should be dismissed.
(Submissions re costs)
I will therefore order, firstly, that the appeal from the order of Associate Justice Daly of 8 October 2009 be dismissed. Secondly, that the third defendant pay the costs of the plaintiff of the appeal, including any reserved costs.
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