Keith Henry Evans v Queanbeyan City Council
[2009] NSWDDT 22
•18 September 2009
Dust Diseases Tribunal
of New South Wales
CITATION: Keith Henry Evans v Queanbeyan City Council [2009] NSWDDT 22 PARTIES: Keith Henry Evans (Applicant on the Motion)
Amaca Pty Ltd (Respondent to the Motion)MATTER NUMBER(S): 199 of 2009 JUDGMENT OF: Curtis J at 1 CATCHWORDS: DUST DISEASES TRIBUNAL - Proceedings :- Abuse of process – Application to join putative defendant where, due to the elapse of time, no useful evidence is available upon which to conduct a fair trial against that defendant. LEGISLATION CITED: Civil Procedure Act of 2005 s56 & s58
Uniform Civil Procedure Rules 2005 r13.4 & r14.28CASES CITED: Batistatos v RTA (2006) 226 CLR 256
Parsons v Martin (1984) 5 FCR 235
Hunter v Chief Constable of the West Midlands Police [1982] AC 529DATES OF HEARING: 11 September 2009
DATE OF JUDGMENT:
18 September 2009LEGAL REPRESENTATIVES: Mr G F Little SC instructed by Denniston & Day appeared for the Applicant on the Motion.
Mr G M Watson SC instructed by DLA Phillips Fox appeared for the Respondent to the Motion.
JUDGMENT:
Dust Diseases Tribunal of New South Wales
Matter Number 199 of 2009
Keith Henry Evans
v
Queanbeyan City Council
18 September 2009
RULING
CURTIS J
The claims for relief
1. Mr Keith Henry Evans, a retired 83 year old carpenter, asserts that he has contracted asbestos related pleural disease and lung cancer as a result of working with asbestos cement building products between 1942 and 1990. By Statement of Claim filed in the Tribunal on 21 July 2009 he sues Queanbeyan City Council, his employer between 1975 and 1990. Queanbeyan City Council has issued a cross-claim against Amaca Pty Limited (‘Amaca’), formerly James Hardie and Coy Pty Limited, asserting that the building products used by Mr Evans between 1975 and 1990 were manufactured by Amaca.
2. Because Mr Evans is dying, the hearing of his claim has been expedited. His evidence was taken at his home in Queanbeyan on 28 August 2009. Before Mr Evans was sworn, his counsel, Mr Foord, sought leave to amend the statement of claim so as to join Amaca as a defendant liable for the consequences of Mr Evans’ asbestos exposure during the whole of the period 1942 to 1990. R19.1 of the Uniform Civil Procedure Rules 2005 provides that a plaintiff may not, without leave of the court, amend a statement of claim after 28 days have elapsed from the date on which it was filed. Mr Foord had not yet drawn the amended statement of claim, and his application was deferred.
3. For reasons of convenience, it was agreed that evidence relevant to the proposed amendment should be led from Mr Evans, and the application for leave deferred.
4. The application is now before me. I understand that, in so far as the amendment joins Amaca as a defendant in respect of the period 1975 to 1990, it is not opposed.
5. In relation to the period 1942 to 1975, Amaca opposes the amendment upon the ground that the effluxion of time since the alleged breaches of duty occurred has made it impossible for Amaca to dispute any assertion by the plaintiff that he was exposed exclusively, significantly, or at all, to the products of James Hardie and Coy, and accordingly, a fair trial is not possible. Amaca asserts that in the circumstances, the plaintiff’s action against it should be permanently stayed as an abuse of process.
The Evidence
6. In his Statement of Particulars filed on 21 July 2009, concurrently with the original Statement of Claim, Mr Evans disclosed the following employment history:
1940 1941 Captains Flat Grocery Store Groceries Sales assistant. Full time. General sales assistant work, stacking shelves. 1942 1962 Lake George Mines Production of lead, copper, zinc & gold Carpenter. Full time. Constructing housing and sheds. 1962 Bruce Hush Timber cutter Cutting timber to produce eucalyptus oil. 1964 1968 Edward Malone House dismantler Carpenter. Full Time. Dismantling and relocating homes. 1965 1973 Artisan building Company Pty Limited Building company Carpenter. Full Time. Building houses. 1965 1973 AV Jennings Pty Limited Building company Carpenter. Full Time. Building houses. 1965 1973 Paul Camilliere Building Company Pty Limited Building company Carpenter. Full Time. Building houses. 1973 1975 Orbit Pty Limited Building company Carpenter. Full Time. Building houses. 1973 1975 Armstrong & De Maniel Pty Limited Building company Carpenter. Full Time. Building houses. 1975 1990 Queanbeyan Council Local Council Carpenter– maintenance section. Full Time. Repairing older buildings.
7. The particulars, declared to be true by Mr Evans, also record the following:
- Q. What asbestos products were you exposed to, including the product trade name if known? If you do not know the trade name of the product, describe the product.
A. Asbestos sheeting sizes ranging from approximately 10’x 4’ and 8’ x 4’ but the sizes varied over the years. The product was marked "Hardys" [sic] or "Hardys Fibrolite"
Q. Do you know who was a manufacturer and/or supplier of those asbestos products?
A. Hardys.[sic]
8. In an affidavit sworn 1 September 2009 in support of this application, Mr Philip John Day, the plaintiff's solicitor, relevantly says no more than this:
9. I fail to see the relevance of Counsel preparing a Statement of Claim against the last employer, unless he mistakenly confused common law liability with the liability to pay workers’ compensation imposed on the employer who last employed Mr Evans, in employment to the nature of which the disease was due imposed by s15 of the Workers Compensation Act 1987.
10. I reject the suggestion that the need to amend the Statement of Claim arose in the course of the hearing when; "It became apparent that the plaintiff had been a purchasing officer of Amaca Proprietary Limited products during the course of his employment with the Council". This statement is inconsistent with the content of the Particulars prepared by Mr Day and filed on 21 July 2009.
11. If it were necessary for the plaintiff on this application to discharge an onus of demonstrating that the desirability or need for the amendment arose only after the original Statement of Claim was filed, he would fail.
12. In opposition to the amendment Amaca relies upon the affidavit of Ms Laura Maker of 10 September 2009. Ms Maker is the solicitor who has carriage of the matter for DLA Phillips Fox, solicitors for Amaca.
13. Ms Maker has conducted extensive investigations into the employment history of Mr Evans. Every company for whom he worked has been deregistered. No insurers have been identified. Mr Edward Malone cannot be located. The three persons identified by Mr Evans as working with him at Lake George Mines Ltd, Tommy O'Brien, Wally Kelly and Lyle Stapleton, cannot be located.
14. Mr Little SC, who now appears with Mr Foord for Mr Evans, concedes that very little can be discovered that is corroborative of this case. Upon the evidence I find that Amaca has no reasonable prospect of discovering any material relevant to the claims made against it by Mr Evans in respect of the period 1942 to 1975.
15. In an affidavit of 3 August 2009, tendered in evidence, Mr Evans did not identify the manufacturer of any asbestos material used by him prior to his employment with Queanbeyan City Council. He stated in relation to that employment, that: "I remember the sheeting that we used, in the corner of the back of the sheeting the name Hardys [sic] or Hardys Fibrolite appeared".
16. In cross examination by Mr Watson SC for Amaca, Mr Evans initially agreed that products depicted in a brochure published in 1941 by Wunderlich, a competitor to James Hardie & Coy, looked like the sort of products that he was using at Lake George Mines. Although, when the question was put again, Mr Evans said "Not really", he was unable to describe any difference.
17. Mr Evans said that the fibro sheets with which he worked at Lake George Mines were labelled in ink. He gave this evidence:
- Q. What colour was it. A ---Black, I think.
Q. What was the style of the script, was it running writing, old English writing or -.
A. Just printed I suppose three-quarter of an inch.
Q. How was Hardies spelt. A---How?
Q. Yes, what did it say. A---Hardies Fibrolite or something like that.
Q. You do not know, do you. A---Pardon?
Q. You do not know, is that what you are saying. A---No, I am just saying I think it was Hardies Fibrolite.
Q. Is this something you might have seen a couple of times and it stuck in your mind. A---No, it was printed on the sheet.
Q. But you saw it a couple of times, did you. A---Hundreds of times probably.
Q. You know that you went when you were down at Lake George Mines you went to work each day, did you have to buy the fibro. A---I think we used to buy it as we needed it
Q. Did you have to. A---Yes.
Q. Where did you buy it from. A---The local shop.
Q. A local hardware. A---Yes.
Q. In the Lake George District. A---At Captain's Flat, yes.
Q. At Captain's Flat. A---Yes.
Q. There would not have been many hardwares at Captain's Flat. A---No.
Q. What would you ask for, just ask for fibro sheets, would you. A---Yes.
Q. You would take whatever they had in stock. A---Yes, it's all the same, three-sixteenth sheets 8 by 4 or whatever.
Q. Did you know that other people apart from James Hardie made fibro. A---They probably did.
Q. You would not know who made the fibro which was being stocked at Captain's Flat at any time, would you. A---Who made it?
Q. Yes. A---I'd say Hardies.
Q. You would say it but the point is you would not know it, would you. A---Not for sure.
Q. It might have been made by one of Hardie's competitors. A---I don't think there were many around then.
Q. See that is what you are thinking, that there were not many around but for all you know there were, is that right. A---There could have been, yes.
Q. You just would not know. A---That's the only one I've heard of.
18. This cross-examination to my mind demonstrated the probability that, although Mr Evans did observe the Hardies brand name on many fibro sheets used by him in the course of his work over the years, there is a distinct possibility that his memory may have been defective in relation to whether all the fibro sheets used by him at Lake George Mines were manufactured by James Hardie and Coy.
19. The possibility that Mr Evans’ memory is defective is raised in other evidence. Mr Evans said that when employed at Queanbeyan City Council he purchased asbestos building products from J. B. Young, and that these products were "Mostly Hardies" products, because that name was written on the sheets.
20. Inquiries by Ms Maker revealed that between 1951 and 1970 J B Young "was a sole stockist of Wunderlich products”, and that between 1971 and 1977 J B Young stocked products manufactured by Wunderlich and James Hardie and Coy in the proportions 90 per cent and 10 per cent.
21. Other answers given by Mr Evans in cross examination cast doubt upon the reliability of any assertion that either all or most of the fibro sheets with which he worked were manufactured by James Hardie and Coy:
- Q. … Did you ever see warnings on the back of the asbestos sheets.
A. See what?
Q. Warnings, signs telling you, warning, asbestos is dangerous. A---No.
Q. Never saw it. A---Never.
Q. If there was a warning on the board would you pay attention to it. A---I would have, yes.
Q. Would you have obeyed it if it said, here is some safe handling instructions. A---Probably wouldn't want to touch it.
Q. I am going to show you now a document which has got on it some copies of some labels, do you remember seeing labels like that on the backs of the boards that you used. A---Not really.
Q. When you say "not really" could they have been there and you did not pay attention to them.
A. I think I would have seen them.
Q. Let us put it this way, if I told you that Hardie's products had that sticker on them from a date, from 1978, are you saying you never saw any sticker or warning like that until I handed you that document. A---What, 1978?
…
Q. Is it the sort of thing that would have caught your eye if you were handling a building product and it had a sticker on it of that kind of colour and style. A---I can't recall seeing it.
Q. Let us assume for the moment that the evidence will be that these stickers were on Hardies’ boards from 1978. If you assume that, does that suggest to you that the boards you were using were not Hardies’ boards. A---I wouldn't know who made them, wouldn't have a clue. Just fibro in them days.
Q. That is right, everybody just called it fibro. A---Yes.
Q. Did not know where it came from. A---No.
Q. You did not know who made it. A---Never had a clue.
Civil Procedure Act of 2005
22. S56 provides that the overriding purpose of the act and the rules of the court in civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in the proceedings, and that the court must seek to give effect to this purpose when it exercises any power given by the act or the rules. A party to civil proceedings is directed to assist the court in furtherance of this purpose.
- S58 provides that in making any order for the amendment of a document, the court must seek to act in accordance with the dictates of justice, and in this regard may have regard to, amongst other things, the degree of injustice that would be suffered by the respective parties as a consequence of the amendment.
23. R13.4 provides that, where it appears that the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed.
24. R14.28 provides that the court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading discloses no reasonable cause of action; has a tendency to cause prejudice, embarrassment or delay in the proceedings; or is otherwise an abuse of the process of the court.
25. In order that a pleading be struck out pursuant to these rules, the defendant must demonstrate "that the case is so clearly untenable that it cannot possibly succeed" (Batistatos v RTA (2006) 226 CLR 256).
Implied Powers to Prevent an Abuse of Process
26. In the exercise of the exclusive jurisdiction conferred by s10 of the Dust Diseases Tribunal Act 1989, the Tribunal has "such powers as are incidental and necessary to the exercise of the jurisdiction of the powers so conferred" (Parsons v Martin (1984) 5 FCR 235 at 241).
27. Included in these powers is the power to prevent misuse of a court's procedures by litigation that, although not inconsistent with the literal application of the procedural rules, is manifestly unfair to one party (Hunter v Chief Constable of the West Midlands Police [1982] AC 529).
28. In Batistatos v RTA the High Court held that even where the plaintiff's case was tenable, and not subject to dismissal pursuant to the then equivalent of r13.4, a court pursuant to its inherent power to prevent abuse of process, could stay the proceedings in circumstances where, because of the elapse of time, no useful evidence was available upon which to conduct a fair trial on the issue of negligence.
Discussion
29. The present case is not one in which the plaintiff’s case as pleaded is untenable. It is not subject to dismissal pursuant to r13.4. The question for determination is whether, because of the elapse of time, there cannot be a fair trial on the allegations made in the amended Statement of Claim.
30. Their Honours in Batistatos adopted a statement by Bryson JA in the New South Wales Court of Appeal in that case, in which he said that the court could not close its eyes "to the practical inability of reaching a decision based upon any real understanding of the facts, and the practical impossibility of giving the defendants any real opportunity to participate in the hearing, to contest them or, if it should be right to do so, to admit liability on an informed basis".
31. The unfairness identified in Batistatos was the unfairness in compelling the defendant to incur the costs and vexation of a trial in which the plaintiff could not possibly succeed because of a dearth of evidence.
32. Because I am not yet informed by expert evidence, Amaca has not demonstrated that the amended Statement of Claim pleads a case that must fail because of evidentiary shortcomings.
33. The present application to amend is to be seen in context. The amended Statement of Claim recites the plaintiff’s employers between 1942 and 1975 and pleads that:
- 11. During the course of those employments the plaintiff frequently worked with fibro sheeting manufactured and supplied by [James Hardie and Coy] containing asbestos which was both flat and patterned.
12. During the course of those employments the plaintiff was exposed to and inhaled asbestos dust and fibre.
19. By reason of the matters aforesaid the plaintiff has suffered pain, injury, loss and damage as particularised in the Statement of Particulars.
34. The Statement of Particulars recites as Particulars of Injuries:
35. Mr Evans conceded in evidence that he commenced smoking cigarettes at the age of 14 or 15, that he smoked for 40 years, and that, for some time at least, he smoked 25 cigarettes a day.
36. Lung cancer has a high incidence in the general population. The disease is nevertheless more prevalent in those groups who have inhaled cigarette smoke or asbestos fibre. The mechanisms by which healthy cells mutate into the cancerous cells, either endogenously, or through the agency of cigarette smoke or asbestos fibre, or some other agent, are unknown.
37. Mr Evans’s smoking history is sufficient explanation for the onset of lung cancer. His case against Amaca must be that his exposure to asbestos fibre liberated from the products of James Hardie and Coy materially contributed to his disease. Such a case can only be made out by expert evidence.
38. If Mr Evans has asbestos related pleural disease, that disease can also be related to asbestos exposure by expert evidence. A question then arises, to be answered by expert evidence, as to whether that injury is indivisible as between contributing causes.
39. Mr Evans has described those markings on asbestos sheets that identified the sheets as James Hardie and Coy products. I see no unfairness in permitting him to rely upon these observations in advancing a case that any exposure to these products materially contributed to his diseases if that contention is supported by expert evidence.
40. What is not possible upon the evidence to hand, is the advancement of a case that quantifies Mr Evans’ exposure to asbestos fibre without regard to the chances that some part of his exposure was to asbestos fibre released from materials that were not manufactured by James Hardie and Coy.
The plaintiff's submissions
41. "The defendant has been sued on innumerable occasions and has a large amount of material available to it with which to defend the product liability claims made against it. Findings have been made about the defendant’s supply of material and state of knowledge from the 1950s together with findings about the defendant's market share at times relevant to this case."
The problem with this submission is that it does not recognise the relevant issue. Even if it is accepted that James Hardie and Coy was in breach of its duty of care to tradesmen using its product between 1942 and 1975, it remains incumbent upon Mr Evans to prove that the products manufactured by that company caused or materially contributed to his diseases. If his expert evidence is not to the effect that any exposure to asbestos fibres contributed to his diseases, then he must identify and quantify the particular contribution made by the products of James Hardie and Coy.
I cannot recall any case before the Tribunal in which the exposure of a particular plaintiff to asbestos materials has been quantified upon findings of the market share of a defendant. Nevertheless if such evidence is available the plaintiff should be permitted to place it before the court with submissions on admissibility and probative value.
42. "Any prejudice to the defendant has been remedied by affording to it the opportunity of cross-examining the plaintiff."
This submission if anything highlights the disadvantage faced by Amaca. The evidence led from Mr Evans is unsatisfactory in that Mr Evans did not assert in terms that all of the asbestos products upon which he worked were manufactured by James Hardie and Coy, nor did he attempt to apportion his exposure between asbestos materials manufactured by James Hardie and Coy and asbestos materials which may have been manufactured by others. Because of the elapse of time Amaca does not have access to any material with which it may test the reliability of other evidence on this issue if it is later called in the plaintiff’s case.
43. "Parliament saw fit to remove the absolute bar in long latency cases."
This circumstance is irrelevant: As the High Court observed in Batistatos at [62] "It is a long, and impermissible step to deny the existence of what may be the countervailing right of a defendant by imputation to the legislature of an intent, not manifested in the statutory text, to require the court to give absolute priority to the exercise by the plaintiff within the limitation period of the right to institute proceedings."
44. "There being no attempt to demonstrate prejudice during the period of the plaintiff's employment by the Queanbeyan Council, it is artificial to sever the claim in respect of the earlier period in the light of his evidence, and historical material available to the parties."
This submission again highlights the disadvantages confronting Amaca. In respect of the period 1975 to 1990 there appear to be some records available from the retail supplier of the asbestos used by the plaintiff. In relation to the earlier period there is no historical material available to the parties; the elapse of time has resulted in the loss of access to any such material.
Conclusions
45. Upon the present evidence Mr Evans may not advance a case that, in the absence of exposure to products manufactured by Hardies’ competitors, his exposure to Hardies’ products was sufficient to materially contribute to the development of lung cancer.
46. Nevertheless, the amendment should be permitted for these reasons:
1. The inability of Amaca to obtain evidence relating to the proportion of asbestos materials used by Mr Evans and manufactured by James Hardie and Coy is irrelevant if the plaintiff’s expert evidence is to the effect that any exposure to asbestos in his work materially contributed to his lung cancer and/or that Mr Evans’s pleural disease is indivisible.
2. The plaintiff should be permitted to offer specific evidence of market share within the geographical boundaries of Mr Evans’s working environment, so that informed debate may take place as to the admissibility and probative value of such evidence.
47. As is apparent from paragraphs 9 and 10 above, there is no reason why Amaca should not have been joined as a defendant in the original proceedings. In the circumstances the costs of this application should be the defendant's costs in the cause.
Orders
48. Leave to the plaintiff to file an Amended Statement of Claim in the terms of the proposed amendment annexed to the affidavit of Mr Philip John Day of 1 September 2009.
49. Costs are Amaca’s costs in the cause.
Mr G F Little SC instructed by Denniston & Day appeared for the plaintiff
Mr G M Watson SC instructed by DLA Phillips Fox appeared for Amaca Pty Limited
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