Jameson v Amaca Pty Ltd (Ruling No 1)
[2016] VSC 163
•15 April 2016
| Not Restricted |
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 05643
| LEIGH JAMESON | Plaintiff |
| v | |
| AMACA PTY LTD (FORMERLY JAMES HARDIE & COY PTY LTD) | Defendant |
JUDGE: | ZAMMIT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 April 2016 |
DATE OF RULING: | 15 April 2016 |
CASE MAY BE CITED AS: | Jameson v Amaca Pty Ltd (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 163 |
ADMISSIBILITY – Evidence Act 2008 ss 102, 103 – admissibility of previous pleadings and interrogatories – credibility of witness – balancing probative value and prejudice
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Quinn QC with Mr J Gordon of Counsel | Slater and Gordon |
| For the Defendant | Mr R Gillies QC with Mr M Clarke of Counsel | DLA Piper |
HER HONOUR:
An issue has arisen as to whether the defendant, can adduce evidence in cross-examination of the plaintiff, Mr Leigh Jameson, in relation to earlier pleadings, including when the deceased, Kathleen Jameson, was the plaintiff to this proceeding and answers to interrogatories sworn by the deceased. The documents in issue are the statement of claim dated 21 October 2014, the amended statement of claim dated 16 April 2015 and first defendant’s interrogatories for the examination of the plaintiff dated 25 November 2014 and the plaintiff’s answers to the interrogatories dated 4 December 2014.
The plaintiff, Leigh Jameson, is the son and next of kin of Kathleen Jameson, who died on 29 January 2015 and he is the joint executor and trustee of the last will and testament of the deceased.
The deceased’s statement of claim dated 21 October 2014 made allegations of exposure to asbestos products against the defendants, Amaca Pty Ltd and Seltsam Pty Ltd (then the second defendant). The plaintiff has discontinued the claim against the second defendant, Seltsam. In the statement of claim dated 21 October 2014 the deceased alleged exposures to asbestos products manufactured by Seltsam (Wunderlich) and James Hardie in the periods of 1950 to 1953 and 1957 to 1958 in the course of home renovations of properties located in Anderson Street, Pascoe Vale and Kars Street, Frankston.
The amended statement of claim dated 16 April 2015 filed and served after the deceased’s date of date (29 January 2015) was amended primarily to substitute the current plaintiff. The periods of exposure alleged were consistent with the 21 October 2014 Statement of Claim, from 1950 to 53 and 1957 to 58 in relation to the same renovations
Pursuant to orders made on 24 August 2015, the plaintiff filed the further amended statement of claim, the current pleadings. The further amended statement of claim is dated 7 October 2015.
The further amended statement of claim abandoned the allegations of exposure in the home renovation periods of 1950 to 1953 and 1957 to 1958. The sole exposure alleged in the current pleadings at paragraph 3 relates to the deceased’s exposure in 1978 to asbestos cement sheets manufactured by James Hardie in the course of a shower room renovation of the Kars Street property.
The defendant’s defence to the further amended statement of claim, dated 4 November 2015, denied negligence and did not admit the deceased’s alleged exposure to asbestos in 1978.
On the first day of trial, I granted leave to the defendant to file and serve an amended defence, which was filed that evening. At paragraph 8 of the amended defence, dated 13 April 2016, the defendant made admissions and I will not read what they were, set out at paragraph 8.
In its amended defence, the defendant does not admit the allegations contained in paragraph 3 of the further amended statement of claim, namely that in 1978 the deceased and her husband renovated a shower room at their home in Kars Street, Frankston, and in the course of that work the deceased was exposed to and inhaled asbestos fibres liberated from the Hardie asbestos materials.
By way of completeness, shortly before the plaintiff filed and served the further amended statement of claim the plaintiff’s former solicitors ceased to act and his new solicitors, Slater & Gordon, took over the conduct of the proceeding on behalf of the plaintiff. Concerns have quite rightly be raised by the plaintiff’s senior counsel, Mr Quinn, that the Court should not allow evidence and/or any line of questioning which may breach any solicitor/client privilege. The parties agree that at no stage has the privilege been waived.
The defendant submits that the plaintiff’s case is a moving feast. The plaintiff has abandoned the previously pleaded case of exposures in the 1950s to Hardie and Wunderlich products and now pleads a new case in the further amended statement of claim alleging a single period of exposure in 1978. The defendant seeks to challenge that new case. The defendant had not admitted the alleged exposure in 1978 and as such the plaintiff has to prove asbestos exposure in the relevant period and that the Hardie products caused the deceased’s mesothelioma.
The defendant submits that it is probative in relation to the reliability of the plaintiff’s case that he be allowed to cross-examine the plaintiff in relation to the earlier pleadings and answers to the defendant’s interrogatories.
In the alternative the defendant submits that the deceased’s answers to interrogatories are admissions and therefore can be used by the defendant. The plaintiff submits that the sworn answers are those of the deceased in a pleaded case in which the 1978 exposure is not alleged. As such, there is nothing in her answers that was inconsistent or adverse to her interest and accordingly they were consistent with her case.
The plaintiff resists the defendant’s use of the prior pleadings and answers to interrogatories in the cross-examination of the plaintiff or, as I understand it, any witness, on the basis that it is done solely to attack credit and is therefore inadmissible pursuant to s 102 of the Evidence Act 2008, the credibility rule.
The defendant submits that the evidence he seeks to adduce falls within s.103(1) of the Evidence Act and is therefore an exception to the credibility rule contained in s.102. Section 103(1) provides that the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness, in this case, the plaintiff.
Mr Quinn submits that in this case the plaintiff has not made previous representations in answers to interrogatories and that it cannot be suggested that he has changed his case. It is submitted that the plaintiff has only ever had one case from the beginning that he has been pursuing on behalf of the estate and that the lack of overlap is absolutely damming in respect of the use of s.103. Mr Quinn’s submission is not completely accurate. The Amended Statement of Claim dated 16 April 2015 maintained the 1950 – 53 and 1957 – 58 exposure allegations. Mr Jameson was substituted as the plaintiff in that pleading. It is not until October 2015 that the fresh allegations are made, changing the pleadings significantly. So there is some overlap between the deceased’s case and the case pleaded in April 2016 when the deceased was substituted by the plaintiff.
In short, the defendant submits that it is relevant and probative to the determination of the issue of exposure in 1978 to put to the plaintiff what he knew of the earlier allegations and to explore why the 1978 exposure did form part of the earlier pleadings or answers to interrogatories sworn by the deceased. Senior counsel for the defendant, Mr Gillies, agrees that any line of questioning could not go to discussions or matters to which solicitor/client privilege attaches.
I consider that adducing evidence in cross examination of the plaintiff in relation to the earlier pleadings and answers to interrogatories are relevant and could substantially affect the assessment of the plaintiff. The plaintiff’s knowledge of the deceased’s exposure in 1978 and any other exposures are relevant matters which may affect the probability of the existence of a central fact in issue, namely was the deceased exposed to asbestos fibres from Hardie products in 1978 as pleaded. The Statement of Claim and the deceased’s answers to interrogatories arguably demonstrate what the deceased’s version of events was at the time the case issued. The pleaded case even at the time of the Amended Statement of Claim when the current plaintiff was substituted pleaded is a very different case to the current pleadings. The plaintiff has abandoned one case and pleads a fresh case. I consider that it is relevant and that in the context of cross examination it is open to the defendant to put the pleadings and the deceased’s answers to the plaintiff. I consider such cross-examination could rationally affect the assessment of the probability of the plaintiff’s credit on the central issue of the deceased’s exposure in 1978. Credibility evidence has a broad scope. Cross examination in this case about the earlier pleadings and answers which are silent even if not inconsistent with the current pleaded may go to the plaintiff’s recollection. As such I consider that such evidence would satisfy the requirements of s.103 ( 1) of the Evidence Act.
Given my finding in relation to the credibility rule and the exception in s.103 I will allow the defendant to use the prior pleadings and the deceased’s answers to interrogatories in the cross examination of the plaintiff.
The defendant also submitted that the pleadings and answers were admissible in that they were admissions against interest. Assertions in pleadings not verified on oath do not constitute admissions in proceedings. I query whether the interrogatories can be characterised as admission against interest. I agree with Mr Quinn’s submission that at the time the deceased swore the Answers to Interrogatories, her pleaded case did not include the 1978 exposure. The definition of admission in the Evidence Act dictionary means a representation that is made by a person who is or becomes a party to a proceeding; and adverse to the person’s interest in the outcome of the proceeding. There is nothing in the deceased’s answers which was adverse to her case as pleaded. The Answers were consistent with the pleaded case conducted at the relevant time.
Having said that, in any event, I allow the defendant to adduce evidence from the plaintiff in relation to the pleadings and the deceased’s answers given their relevance and probative value and I consider that it satisfies the requirements of s.103.
Finally, the plaintiff submits that pursuant to s 135 of the Act the Court should exercise its general discretion to exclude the evidence on the basis that the probative value it may have is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff. I consider that any prejudice to the plaintiff is outweighed by the probative value of the evidence. In circumstances where the documents are relevant; the fresh case departs significantly from the earlier case; and the deceased’s version and the plaintiff’s version in the 16 April 2015 Amended Statement of Claim abandon one case completely and do not include the current pleaded exposure in 1978; the probative value outweighs any potential prejudice to the plaintiff.
I will allow the defendant to direct questions in cross examination of the plaintiff in relation to the prior pleadings and answers to interrogatories. I note Mr Gillies reassurance that any questions will not involve stepping inside the plaintiff or deceased’s solicitors office and asking who said what or what did he say.
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