Lacone v Amaca Pty Ltd

[2007] VSC 38

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8478  of 2006

TIM LACONE	Plaintiff
v
AMACA PTY LTD	First Defendant
and
SELTSAM PTY LTD	Second Defendant

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2007
DATE OF JUDGMENT:	18 January 2007
CASE MAY BE CITED AS:	Lacone v Amaca P/L and Seltsam P/L
MEDIUM NEUTRAL CITATION:	[2007] VSC 38

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COURTS PRACTICE AND PROCEDURE – Application for vacation of trial date and order that plaintiff provide particulars of claim for economic loss – Expert report on economic loss served – Defendants entitled to have particulars of claim set out in accordance with RSC 13.10 (4).

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APPEARANCES:	Solicitors
For the Plaintiff	Mr P. Over	Slater & Gordon
For the First Defendant	Mr D. Wallis, Solicitor	Phillips Fox
For the Second Defendant	Mr P. Rowell, Solicitor	Monahan + Rowell

HIS HONOUR:

1. Tim Lacone has sued Amaca Pty Ltd and Seltsam Pty Ltd for personal injuries arising out of alleged exposure to asbestos.  As a result of that exposure, Mr Lacone alleges and it is not contested that he has contracted a terminal illness, mesothelioma. 

1. The issue before the Court this morning is whether the trial of this proceeding which is listed for Monday, 22 January 2007 should proceed on that day or whether it should be adjourned and the plaintiff ordered to provide the particulars required by RSC 13.10 (4), that is to say, particulars of the claim which he makes for economic loss, past and future.

1. The trial was fixed for 22 January 2007 on the basis that the plaintiff is in extremis and it is not a matter of contest between the parties that that is the case.  However, it is impossible to say how much time Mr Lacone has left and it is inappropriate that the court become involved in calculations of a fine nature in that respect.  Sufficient to say that he is very ill and the matter needs to be resolved as quickly as possible.

1. On the other hand, the material provided by the plaintiff in respect of his claim for economic loss consists of a forensic accountant's report which runs to a number of pages, some 16 in all, with a large number of schedules setting out various calculations.  There are pages of figures which, I assume, are said to justify the calculations made by the accountant which result ultimately in a summary which gives five scenarios as to the way in which damages might be calculated.

1. The problem is a simple one.  The scenarios set out by the accountant, Mr Mariano Rossetto, range in size from $55.8 million to $0.28 million, and there are three figures in between.  The defendants are entitled to know on what basis the plaintiff will go to the jury in this case and ask it to assess his damages.  In the course of argument, Mr Over, for the plaintiff, effectively said that the plaintiff would be seeking the $55.8 million with fall-back positions or other positions for the possibility of the jury taking into account other figures which will be provided.  In my opinion, that is not sufficient.  The defendants are entitled to have set out in accordance with RSC 13.10 particulars of the plaintiff's earnings lost which he claims and particulars of any loss of earning capacity in the future which he claims.  If he is claiming $55.8 million, it should be set out in a document with those particulars.  The material in the forensic accountant's report is, no doubt, of sufficient detail to provide any necessary future particulars as to how the claim is calculated,  but the fact that the claim is made should be set out.  Accordingly, I propose to order that the plaintiff provide appropriate particulars.

1. The question then arises as to what happens to the trial.  There are only four sitting days next week, the Friday being a holiday.  Mr Rowell, who made submissions on behalf of the second defendant, has indicated that he has a forensic accountant standing by, in effect, who would need two days or so to look at the material.  If these particulars were provided by the close of business tomorrow, that would mean that, being realistic and even allowing for some work at the weekend, it would be 24 or 25 January before the trial could start, if the defendants are to be given appropriate time.

1. In the circumstances, the defendants seek an adjournment to 5 February 2007.  I do not consider that an adjournment to 5 February is necessary, however, having regard to the short week next week, and to the fact that particulars have not yet been provided and need to be provided, it is reasonable that the trial be adjourned for a week, that is to 29 January 2007.  That takes into account the terminal nature of Mr Lacone's illness, it does not unduly delay the matter, indeed, having regard to its proposed length and the short week next week it is a relatively minor adjustment to the timetable and there will be a judge available on 29 January to hear the matter.

1. Accordingly, I make the following orders:

1.That the plaintiff file and serve upon the defendants particulars of his claim for economic loss to date and future loss of earning capacity by 5.00 p.m. on Friday 19 January 2007.

2.That the trial listed for 22 January 2007 be vacated and that the matter be listed for trial on 29 January 2007.

3.That the pre-trial conference listed for 4.30 p.m. 18 January 2007 be adjourned by consent.

4.That a pre-trial conference take place on or before Wednesday 24 January 2007.

5.That costs be reserved.

6.That there be liberty to apply.

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