Jane Chester as Executor of the Estate of the Late John Lapp v State of New South Wales

[2022] NSWDDT 10

Dust Diseases Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Jane Chester as Executor of the Estate of the Late John Lapp v State of New South Wales [2022] NSWDDT 10

Hearing dates:

21 October 2025

Date of orders:

22 October 2025

Decision date:

22 October 2025

Before:

Judge Russell SC

Decision:

(1)   Add Professor Brims to Order 3(a) made on 7 October 2025.

(2)   Decline to add Professor Fox to Order 3(a) made on 7 October 2025.

(3)   Decline to add Associate Professor Franklin to Order 3(d) made on 7 October 2025.

(4)   Decline to vary Order 4 made on 7 October 2025 and confirm that all conclave reports should be confined to listing the points of agreement and the points of disagreement.

(5)   Costs of this dispute concerning conclaves and conclave reports to be costs in the cause.

Catchwords:

DUST DISEASES — Prescribed dust diseases — Asbestos related carcinoma

DUST DISEASES — Evidence — Expert evidence — Conference between expert witnesses – Dispute about respiratory physician conclave – Dispute about occupational hygienist conclave – Dispute about task of each conclave – court discretion to prescribe content of reports

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), Pt 31.24

Category:

Procedural rulings

Parties:

Jane Chester as Executor of the Estate of the Late John Lapp (Plaintiff)
State of New South Wales (Defendant)

Representation:

Counsel:
A Giurtalis / A Schonell (Plaintiff)
J Sharpe (Defendant)

Solicitors:
Maurice Blackburn Lawyers (Plaintiff)
Thompson Cooper Lawyers (Defendant)

File Number(s):

2023/00007932

JUDGMENT

Background

1. The late Mr John Lapp brought proceedings in this Tribunal against the State of New South Wales alleging that he contracted lung cancer as a result of asbestos exposure while working at the State Dockyard in Newcastle. Mr Lapp’s evidence was taken at a bedside hearing on 6 February 2023. Mr Lapp has passed away and the proceedings have been continued by Ms Jane Chester as the executor of his estate.

2. Asbestos is a known carcinogen. So is cigarette smoke. Mr Lapp was a smoker. Causation of Mr Lapp’s lung cancer is likely to be the key medical issue in the proceedings, which have been set down for hearing before me commencing on 2 February 2026.

3. Both parties have engaged experts in the fields of: respiratory medicine, epidemiology, pathology and occupational hygiene. The defendant has also retained an oncologist as an expert.

4. On 7 October 2025 I made directions for conclaves to be held by 1 December 2025 between:

1. Dr Robert Edwards and Associate Professor McKenzie. Both are respiratory physicians.

2. Associate Professor Franklin, Professor Brims and Dr Moolgavkar. All are epidemiologists.

3. Professor Klebe and Professor Roggli. Both are pathologists.

4. Mr Kottek and Mr Rogers. Both are occupation hygienists.

5. The parties are now in dispute as to which experts should join two of the four conclaves. The parties are also in dispute as to the questions which should be asked of the experts, and whether they should be asked to provide reasons.

6. On 7 October 2025 I made the following order:

“Joint reports produced as a result to the conclaves are to be served by 10 December 2025, such reports to list the points of agreement and the points of disagreement.”

Dispute about the respiratory physician conclave

7. As recited above, the order made on 7 October 2025 was for Dr Edwards and Associate Professor McKenzie to meet in conclave. The plaintiff wishes to add Professor Brims to that conclave, as he is a respiratory physician as well as an epidemiological research author. This is not opposed by the defendant. The plaintiff also wishes to add Professor Richard Fox to the conclave. Professor Fox is an oncologist retained by the defendant. The plaintiff has not retained an oncologist.

8. The plaintiff submits that Professor Fox should be added to the respiratory physician conclave, as it would be odd to leave him out of the debate.

9. I do not think that Professor Fox should be added to the respiratory physician conclave. The three respiratory physicians will approach their task from a common background. Professor Fox, who is an expert in a different field of medicine, will approach the issue from his standpoint. While no doubt each expert is highly qualified in medical matters, one would expect Professor Fox to defer to the other three experts in the field of respiratory medicine. Conversely, one would also expect the three respiratory physicians to defer to the opinion of Professor Fox in relation to oncology. I will therefore make an order adding Professor Brims to the respiratory physician conclave but I will not make an order adding Professor Fox to that conclave.

Dispute about the occupation hygienist conclave

10. The plaintiff wishes to add Associate Professor Franklin to the occupational hygienist conclave. He is not an occupational hygienist, but is an epidemiologist. The two expert occupational hygienists retained by the parties, Mr Kottek and Mr Rogers, have both referred in their reports to the Australian Asbestos Job Exposure Matrix. Associate Professor Franklin is one of the co-authors of this Matrix. No doubt he may have something to say about whether either or both occupational hygienists have correctly understood and applied the Matrix. However, I see no point in adding him to the occupational hygienist conclave as there is nothing to suggest that he can offer a view about the likely level of exposure of Mr Lapp at the State Dockyard. By contrast, Mr Kottek and Mr Rogers are trained in the measurement and estimation of dust and are thus qualified to make an estimate of the dust exposure of Mr Lapp, given certain factual assumptions.

11. I therefore decline to add Associate Professor Franklin to the occupational hygienist conclave.

Dispute about the task of each conclave

12. When I made orders for conclaves on 7 October 2025 I specifically ordered that a report should be prepared by each conclave, listing the points of agreement and the points of disagreement. I did not ask for each conclave report to set out any reasons for declining to agree with the opposite side’s expert. In my experience one of the great benefits of a conclave and a conclave report is that when the experts speak to each other they sometimes reach agreement on some matters and thus narrow the issues to be decided by the court. Further, having a simple list of the matters agreed and the matters in dispute provides a focus for the court to know what issues have to be decided.

13. Practice Note SC Gen 11 deals with joint conferences of expert witnesses. Paragraph 5 of the Practice Note sets out the objectives of joint conferences. These include:

1. The just, quick and cost effective disposal of the proceedings.

2. The identification and narrowing of issues in the proceedings.

3. The consequential shortening of the trial and enhanced prospects of settlement.

4. Apprising the court of the issues for determination.

5. Binding experts to their position on issues.

14. Expert reports have been served by both parties. Presumably those reports contain not only the opinions of the experts, but also, in accordance with the rules of evidence, reasons to support each opinion.

15. If the experts simply list the points upon which they still disagree, then the reasons for such disagreement will appear from a reading of the existing expert reports. I do not see the point of putting the experts to the trouble, and the parties to the expense, of having reasons for an opinion repeated in a conclave report.

16. Part 31.24(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides as follows:

31.24 Conference between expert witnesses

(cf SCR Part 36, rule 13CA; DCR Part 28, rule 9D; LCR Part 23, rule 1E)

(1) The court may direct expert witnesses--

(a) to confer, either generally or in relation to specified matters, and

(b) to endeavour to reach agreement on any matters in issue, and

(c) to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and

(d) to base any joint report on specified facts or assumptions of fact,

and may do so at any time, whether before or after the expert witnesses have furnished their experts’ reports.

17. It is clear that Pt 31.24(1) gives the court a discretion to direct how much, or how little, should be covered by each conclave report.

18. The plaintiff has proposed (MFI 3) that in relation to each of the four conclaves, the conclave report should set out the matters agreed and the matters not agreed, but should also set out reasons for any disagreement in respect of certain specified matters.

19. The defendant has gone further and has sent to the solicitors for the plaintiff four draft letters (MFI 4) to be sent to the experts. These letters follow the same form as the first part of the proposal of the plaintiff, in that they require the conclave report to list the matters on which agreement was reached, the matters where there is disagreement, and set out the reasons of each expert for the disagreement. The letters, in part, ask the experts to refer back to the reports which have already been served, and to certain questions arising out of those reports.

20. The letters ask some of the experts for an opinion upon “the causation of Mr Lapp’s Lung Cancer”. Medical causation and legal causation are two different tests. It will be of little utility to the court to have a doctor’s opinion about causation which is not based upon the legal formula.

21. Again, to have reports in which experts repeat or recycle the opinions they have offered in existing reports really adds to the time spent by those experts, and the expense to the parties when experts charge for that time.

22. Further, to ask experts to now provide reasons for their disagreement, which at this stage must be obvious from putting the plaintiff’s reports side by side with the defendant’s reports, provides further opportunity for objections to be taken, based on the rules of evidence. This will require further rulings by the Tribunal in relation to the admissibility, not only of the original reports, but of questions answered by the conclave reports as proposed by the parties.

23. The legal principles involved in cases where lung cancer may have arisen from a combination of asbestos exposure and cigarette smoking are well known. These cases depend on the facts found, which in turn feed into the acceptance or rejection of expert opinion.

24. I do not propose to vary the orders made on 7 October 2025 in relation to the content of the conclave reports. In my view the greatest assistance which can be provided to the court by those reports will be (hopefully) to cut down the issues for determination.

Conclusion

25. The orders of the Tribunal are:

1. Add Professor Brims to Order 3(a) made on 7 October 2025.

2. Decline to add Professor Fox to Order 3(a) made on 7 October 2025.

3. Decline to add Associate Professor Franklin to Order 3(d) made on 7 October 2025.

4. Decline to vary Order 4 made on 7 October 2025 and confirm that all conclave reports should be confined to listing the points of agreement and the points of disagreement.

5. Costs of this dispute concerning conclaves and conclave reports to be costs in the cause.

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Amendments

22 October 2025 - Amend decision date to 22 October 2025

Decision last updated: 22 October 2025