Harper v Sydney Local Health District

[2020] NSWDDT 9

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:

Harper v Sydney Local Health District [2020] NSWDDT 9

Hearing dates:

17 November 2020

Date of orders:

19 November 2020

Decision date:

19 November 2020

Before:

Russell SC DCJ

Decision:

(1) These proceedings are removed from the Claims Resolution Process pursuant to cl 20(1)(c) of the Dust Diseases Tribunal Regulation 2019 (NSW).

(2)   The proceedings are listed for directions before me at 2.00pm on 20 November 2020.

(3)   Costs reserved.

Catchwords:

PROCEDURE – plaintiff suffering from malignant pleural mesothelioma and malignant peritoneal mesothelioma – several complex liability and causation issues – large claim for past and future economic loss – mediation delayed with no prospect of it being held by parties – whether proceedings should be removed from the Claims Resolution Process pursuant to cl 20(1)(c) of the Dust Diseases Tribunal Regulation 2019 (NSW)

Legislation Cited:

Dust Diseases Tribunal Regulation (NSW) 2019, cll 12, 16, 17(1), 17(2), 20(1), 20(6), 67(1)

Category:

Procedural and other rulings

Parties:

Warwick Raymond Harper (Plaintiff)
Sydney Local Health District (Defendant)

Representation:

Counsel:
S Tzouganatos (Plaintiff)
J Sharpe (Defendant)

Solicitors:
Turner Freeman (Plaintiff)
Thompson Cooper Lawyers Pty Ltd (Defendant)

File Number(s):

DDT 2020/176944

Judgment

Introduction

1. By a motion filed in court by leave on 17 November 2020, the plaintiff sought an order pursuant to cl 20(1)(c) of the Dust Diseases Tribunal Regulation 2019 (NSW) (“the Regulation”) that the proceedings be removed from the Claims Resolution Process (“CRP”) and be subject to case management by a judge of the Tribunal.

Background

2. The plaintiff is a medical practitioner who was employed by the defendant between 1972 and 1974 as a surgical registrar at the Royal Prince Alfred Hospital. In performing his work the plaintiff walked through tunnels under Missenden Road in Camperdown when travelling between the western and eastern sides of the hospital.

3. The plaintiff now suffers from malignant pleural mesothelioma and malignant peritoneal mesothelioma.

4. By a Statement of Claim filed on 14 January 2020 the plaintiff alleges that when walking through the tunnels under Missenden Road he was exposed to and inhaled asbestos dust and fibre from lagging that was used as insulation on steam pipe work located within the tunnels.

5. Clause 16 of the Regulation provides that once a claim such as that brought by the plaintiff is filed, it becomes subject to the CRP. It remains subject to the CRP until conclusion of a mediation. If the matter settles at mediation then the Tribunal makes orders to give effect to the settlement. If the matter does not settle at the mediation the matter comes back before the Tribunal in the usual fashion for directions and a hearing.

6. The plaintiff’s Statement of Particulars was filed on 5 June 2020.

7. A Timetable was filed on 5 June 2020. The last step in that Timetable was completion of the mediation by 10 August 2020.

8. While the parties have agreed on the identity of the mediator, a mediation has not taken place.

9. By letter dated 3 November 2020 the solicitor for the plaintiff wrote to the Registrar of the Tribunal advising that the parties had been unable to agree on a mediation date and that a mediation had not occurred. The letter asked the Registrar to list the matter for directions so that a case management timetable could be entered by the Tribunal with a view to bringing the matter to trial before a judge in the New Year.

10. The matter was then listed for directions before Judge Scotting on 16 November 2020. His Honour stood the directions hearing over to 17 November 2020 before me. It was on that day that the plaintiff filed his motion, by leave, for removal of the matter from the CRP.

Power to remove from the CRP

11. Clause 12 of the Regulation provides that the objectives of the CRP are:

1. to foster the early provision of information and particulars concerning claims in respect of asbestos-related conditions,

2. to encourage early settlement of claims,

3. to reduce associated legal and administrative costs.

12. Clause 17(1) of the Regulation provides that while a claim is subject to the CRP, proceedings in the Tribunal to determine the claim are deferred and the claim is not subject to case management by the Tribunal. Further, the claim is not subject to the provisions of rules of court, or any directions or order of the Tribunal as to any steps to be taken in proceedings on the claim.

13. Clause 17(2) of the Regulation provides a list of exceptions to the prohibition on the Tribunal dealing with any matter while the claim is within the CRP. After the matter was listed for directions, counsel for the defendant filed and served written submissions (MFI 1) which pointed out that the making of directions and case management generally is not permitted while a matter remains within the CRP. Counsel for the plaintiff accepted that this was correct. No doubt such acceptance led to the filing of the motion to remove the matter from the CRP.

14. Clause 20(1) of the Regulation provides the Tribunal with a power to remove a claim from the CRP in four circumstances. The plaintiff relies only upon cl 20(1)(c) which provides:

“A claim is removed from (and is therefore not subject to) the Claims Resolution Process if –

…

(c)   the Tribunal determines on application by a party (the ‘applicant’) that the claim should be removed from the Claims Resolution Process because another party to the claim has failed to comply with a requirement of the Claims Resolution Process and that failure has resulted in substantial prejudice to the applicant or substantial delay…”

15. Clause 20(6) of the Regulation provides:

“The Tribunal is not to determine that a claim should be removed from the Claims Resolution Process because a party to the claim has failed to comply with a requirement of the Claims Resolution Process unless the Tribunal is satisfied that the failure is continuing and that the party has been notified of and requested to remedy the failure.”

16. Clause 67(1)(c) of the Regulation provides that if a claim is removed from the CRP because of a failure to comply with a requirement of the CRP, then the matter should be listed before the Tribunal for directions.

17. I was not referred to any authorities in relation to the meaning of cl 20(1)(c) of the Regulation, nor am I aware of any reported decision on the provision. Counsel for the plaintiff submitted that it did not require any examination of which party was to blame for the failure of a party to comply with a requirement of the Claims Resolution Process. I accept that submission. The words are plain enough. It is only necessary to establish that the opposite party has not complied with a provision of the CRP, no what caused that failure.

18. Counsel for the plaintiff made it clear that he made no criticism of the defendant or the defendant’s solicitors, in submitting that the defendant had failed to comply with a requirement of the CRP. It was submitted that the “requirement” of the CRP that had not been complied is cl 35(1)(a). This requires mediation of a claim to be concluded within 45 business days after service of the plaintiff’s Statement of Particulars. In accordance with the Timetable filed in the Registry, that date was 10 August 2020.

19. The mediation is now more than three months overdue. There is no prospect of it being held in the near future. The affidavits filed for the parties on the motion (PX 1 and DX 1) set out extensive correspondence between the parties, from which the following can be discerned:

1. The plaintiff is a specialist plastic surgeon who was still in practice, even though in his mid-70s, when he became ill with his disease.

2. The plaintiff’s solicitor has served a report from a forensic accountant which offers the opinion that the plaintiff’s economic loss, past and future, totals more than $2 million.

3. The defendant’s solicitor has retained a forensic accountant who has requested a large volume of financial material in order to prepare a report to meet that served for the plaintiff.

4. The plaintiff’s financial affairs are not uncomplicated, and involve consideration of the plaintiff’s service company and his retirement fund, as well as his personal income. The plaintiff conducted his practice from more than one location.

5. The requests by the defendant’s solicitor have been focused upon documents necessary to enable the defendant to fully investigate the plaintiff’s financial loss claim.

6. The plaintiff’s solicitor has from time to time resisted producing documents on the basis that they are asserted to be irrelevant.

7. The plaintiff’s solicitor has also indicated that certain documents are no longer available for various reasons.

8. A letter dated 23 October 2020 from the defendant’s solicitors to the plaintiff’s solicitors (DX 1, p 54) remains unanswered. That letter sets out with some specificity the financial documents required. It also asks for particulars directed to the investigation of the claim for damages for past and future economic loss.

20. Because of the view I have taken of the operation of cl 20(1)(c), I will not embark upon an analysis of the rights and wrongs of the requests made from time to time and the responses given.

21. An additional complication has recently emerged. The defendant’s solicitors have served reports from medical specialists which opine that this is a “low dose” or “de minimis” case, and that even if there was exposure to asbestos in the tunnels under Missenden Road, the level of exposure would not have been sufficient to cause the plaintiff’s disease. The defendant has also served a report of an occupational hygienist on the same topic. The first of these reports is dated 22 July 2020. There is a report from an international expert dated 15 September 2020. None of the reports were served prior to 2 November 2020.

22. The plaintiff’s solicitor in his affidavit (PX 1, par 19) points out that the plaintiff now has to meet a case on liability as well as establishing quantum. Obtaining material of this nature would also result in further delay in the conduct of the CRP. There would be no point going to a mediation until the plaintiff has some material to counter that recently served by the defendant.

23. I am satisfied that the defendant has failed to comply with a requirement of the CRP, in that it has not proceeded to a mediation by 10 August 2020. In making that finding, I am in no way critical of the steps taken by the defendant’s solicitor to obtain financial material, and nor am I critical of the plaintiff’s solicitor in the responses made to the requests. I am simply finding as a fact that there has been a failure to comply with a requirement of the CRP, in the terms of cl 20(1)(c) of the Regulation.

24. I am further satisfied that that failure has resulted in substantial prejudice to the plaintiff and in substantial delay. The mediation should have been completed over three months ago. The plaintiff has a terminal illness and every day lost causes prejudice in the completion of his claim. It is of course essential that the plaintiff’s claim be settled or completed in his lifetime, as he will lose his claim for future loss of earning capacity if he passes away before the proceedings are concluded. While there might then be a compensation to relatives claim available, that is often an inadequate substitute. There has been substantial delay and the failure to hold the mediation by the due date has already resulted in substantial prejudice to the plaintiff.

25. I am satisfied from reading the correspondence annexed to the affidavits that the failure of the defendant to comply with the CRP is continuing, and that the defendant has been notified of and requested to remedy the failure. These are matters to which the Tribunal must have regard under cl 20(6) of the Regulation. Again, I make it plain that I am not ascribing fault to either party or being critical of either party. The simple fact is that the mediation has not been held. The defendant has had its reasons for not going to mediation, and so has the plaintiff.

26. In my view cl 20(1)(c) of the Regulation is a power given to the Tribunal to resolve precisely the type of impasse between the parties that exists in this case. This case is more complicated than most, not just because of the nature of the disease, but also because of liability and causation issues, as well as a large claim for past and future economic loss. This claim needs to be removed from the CRP, so that the Tribunal can make directions with a view to hearing the claim and determining it within the plaintiff’s lifetime. Both parties will benefit by case management by the Tribunal. They will have a full opportunity to argue whether the documents requested are or are not relevant. There will be the opportunity to deal with any necessary discovery on the exposure issue.

27. I do not propose to determine costs at the present time. I have not seen the forensic accountant’s report served by the plaintiff and I cannot form a view as to whether the requests for documents and particulars made by the defendant are justified. Only a judge with full knowledge of all of the evidence in the case could make that decision. I therefore propose to reserve costs.

28. My orders are:

1. These proceedings are removed from the Claims Resolution Process pursuant to cl 20(1)(c) of the Dust Diseases Tribunal Regulation 2019 (NSW).

2. The proceedings are listed for directions before me at 2.00pm on 20 November 2020.

3. Costs reserved.

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Decision last updated: 19 November 2020