Morris v Resi Corporation and Babcock Australia Pty Limited - [2011] SADC 70

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MORRIS v RESI CORPORATION AND BABCOCK AUSTRALIA PTY LIMITED
[2011] SADC 70
Judgment of Her Honour Judge Parsons
20 May 2011
PROCEDURE
Further particularity of a statement of claim sought - operation and scope of 6R 102 and related rules - need for each defendant to show significant prejudice - pleading of a condition of long latency - extent of particulars required for exposure to asbestos, foreseeability and scope of duty of care - second defendant's application dismissed - first defendant's application allowed in a limited respect only.
Holcon Australia Pty Ltd v Corporation of the Town of Walkerville (2007) 252 LSJS 236; Pope & Ors v Harris Orchard [2010] SASC 354; Williams v Australian Telecommunications Commission (1988) 52 SASR 215; Marini v MLH Insurance Brokers Pty Ltd & Ors (2004) 237 LSJS 288; H Stanke and Sons Pty Ltd v O’Meara (2007) 98 SASR 450; Abel v Amaca Pty Ltd under NSW External Administrators (formerly James Hardie & Co Pty Ltd) [2010] SADC 98; Sydney Water Corporation v Turano and Anor (2009) 239 CLR 51 para 45; McPherson’s Ltd v Eaton & Ors (2005) 65 NSWLR 187; Wunda Joinery Pty Ltd (In Liquidation) & Anor v Wunda Projects Australia Pty Ltd & Ors [2007] SASC 301; Coonawarra Premium Vineyards Ltd v Nugan Group Pty Ltd [2006] SASC 5, considered.

MORRIS v RESI CORPORATION AND BABCOCK AUSTRALIA PTY LIMITED
[2011] SADC 70
Introduction

The plaintiff has filed proceedings under the Dust Diseases Act 2005 (“DDA”) seeking damages against the defendants, three former employers, in relation to dust disease which he alleges is attributable to exposure to asbestos dust and fibres during his employment with each of the three defendants at the Osborne and Torrens Island Power Stations and elsewhere between 1946 and 1958 and 1965 and 1969.
The proceedings are in the urgent list because medical advice indicates that the plaintiff has a short life expectancy.
Following directions given on 3 February 2011 the plaintiff has filed an amended statement of claim (“the second SOC”) in purported compliance with Rule 99 of the District Court Civil Rules 2006 (“the DCRs”) which provides:
(1)     A statement of claim—
(a)must state each cause of action; and
(b)must state the basis of each cause of action (including reference to any statutory provision on which the plaintiff relies); and
(c)must contain a short statement of the material facts on which each cause of action is based; and
(d)must state any remedy for which the plaintiff asks; and
(e)if the plaintiff seeks an ancillary remedy (such as an extension of a period of limitation or a temporary injunction)—must state the nature of the remedy and the basis on which it is sought.
(2)    If the plaintiff relies on separate causes of action, the statement of material facts must differentiate between—
(a)facts that are common to both or all causes of action; and
(b)facts that are relevant only to a particular cause of action.
(3)    If a plaintiff claims damages for personal injury, the statement of claim must state—
(a)    the general nature of the injury and any resulting disability; and
(b)    the general nature of treatment received; and
(c)the general effect of the injury and any resulting disability on the plaintiff's—
(i)      capacity to work; and
(ii)     enjoyment of life; and
(d)the kinds of economic and non-economic loss suffered by the plaintiff, (but is not to contain details of treatment and loss that are required for the statement of loss).
The first and second defendants have each filed interlocutory applications seeking further particulars of the second SOC pursuant to 6R 102 of the DCRs which provides:
(1)    The Court may, on its own initiative or on application, order a party to file further particulars of its case
(2)    The further particulars are, however, to be confined to facts that are material to the party's action.
(3)     The Court will only make an order for further particulars if satisfied that—
(a)    The pleadings do not give fair notice of the party's case; and
(b)    The order is necessary to avoid substantial prejudice to the party in whose favour the order is to be made.
(4)    Unless the Court directs to the contrary, the further particulars are to be provided by substituting for an existing pleading a new pleading incorporating the further particulars required by the Court.
(5)    No pleading is defective for want of particularity unless the missing particulars would be ordered under this rule.
In considering these interlocutory applications it is also noteworthy that R 98(2) provides the following general rules about pleadings:
(2)     A pleading—
(a)must be as brief as the nature of the case allows; and
(b)must state only material facts relied on and not the evidence or arguments by which the facts are to be proved; and
(c)must not contain matter that is—
(i)      scandalous; or
(ii)     evasive or ambiguous; or
(iii)    frivolous or vexatious; or
(iv)    an abuse of the process of the Court in some other respect.
(d)    must plead such facts as give fair notice of the party’s case at trial.
Various decisions concerning the identical provisions of the Supreme Court Civil Rules 2006 (SA) (“the current Supreme Court Rules”) provide guidance as to the approach to be taken to applications for further particulars.
When referring to R 98(2)(b) of the current Supreme Court Rules in Holcon Australia Pty Ltd v Corporation of the Town of Walkerville (2007) 252 LSJS 236 White J stressed that when it is necessary to plead an additional matter for the purposes of giving fair notice, it is a material fact, and not evidence, which is to be pleaded.
More recently in Pope & Ors v Harris Orchard [2010] SASC 354 White J identified the minimization of interlocutory disputation as the aim of the current Supreme Court Rules but confirmed that the function and purpose of pleadings under those Rules are those stated by King CJ in Williams v Australian Telecommunications Commission (1988) 52 SASR 215 at 216 in relation to the 1987 pleading regime:
The new Rules do not change, however, the fundamental nature, function or purpose of pleadings. The fundamental purpose of pleadings is to provide a structure or framework for the litigation designed to promote a just outcome. Pleadings achieve this purpose by performing two basic functions. The first is to define the issues between the parties thereby providing the basis for the determination of questions as to discovery before trial and admissibility of evidence at trial and of questions as to what the litigation has decided for the purpose of the Rules as to res judicata and issue estoppel. The second function is to give the parties fair notice of the case to be made against them at trial thereby minimising the risk of injustice resulting from surprise.
A statement of claim pursuant to the DCRs, or Supreme Court Rules, will plead a number of statements of conclusion which support the claim made. Those statements of conclusion must be supported by material facts to comply with the two basic functions set out above.
However as Besanko J said in Marini v MLH Insurance Brokers Pty Ltd & Ors (2004) 237 LSJS 288 one cannot generalize about the nature of the material facts sufficient to give fair notice of the case to be met because it will depend upon the circumstances of the particular case.
In Marini there were complaints about various aspects of the pleadings. Certain paragraphs of the statement of claim were found to be deficient because they did not identify, with precision, the dates on which various events occurred and something of their circumstances.
Besanko J took the view that, without better identification of the specific events and circumstances relied upon by the plaintiff, the defendant would be unreasonably burdened by having to prepare his case to cover every possibility over a period of years and that, as a consequence, the statement of claim did not provide him with fair notice of the case to be made against him at trial.
Thus the question whether fair notice was given took into account the scope of the investigation and the preparation that the opposing party would be required to undertake if further material facts were not provided.
The Full Court of the Supreme Court applied that approach in H Stanke and Sons Pty Ltd v O’Meara (2007) 98 SASR 450 when determining that further particulars of a pleaded conclusion contained in an amended defence should be provided by the defendant to the plaintiff. This was necessary because the material facts pleaded were dependent upon records accessible to the defendant and the plaintiff would suffer considerable inconvenience in investigating those allegations.
Whilst Marini and Stanke provide guidance as to the issue of prejudice to the opposing party in the context of whether fair notice has been given these authorities demonstrate that the nature of the material facts required to be pleaded to give fair notice of the case to be mounted against an opposing party at trial depends upon the cause of action and the circumstances of the particular case.
Any issue concerning the sufficiency of the pleadings in a claim for damages for a dust disease must be determined bearing in mind the generally accepted position that such diseases remain latent for many years after the asserted exposure. By the time that the injury first comes to the attention of the plaintiff and proceedings are issued, many years will have passed and the passage of time may influence the precision with which a plaintiff may plead material facts. As a result, the material facts supporting a conclusion that the plaintiff was exposed to asbestos may be based upon the best recollection that the plaintiff has about where and when an alleged exposure occurred, what duties were undertaken at that time and the duration and circumstances of the alleged exposure.
Added to that, the very nature of an asbestos related disease makes it impossible to isolate any particular exposure amongst many, as the cause of the condition. Material facts as to exposure will necessarily be global rather than precise.
These complexities are recognized by various provisions of the DDA which provide practical measures allowing dust diseases proceedings to be conducted differently from other civil actions. The object of the DDA contained in s 4 provides:
The object of this Act is to ensure that residents of this State who claim rights of action for, or in relation to, dust diseases have access to procedures that are expeditious and unencumbered by unnecessary formalities of an evidentiary or procedural kind.
Section 5 ensures expeditious hearings and s 8 provides evidentiary presumptions and special rules as to evidence and procedure with a view to expediting proceedings and accommodating difficulties of proof occasioned by the long latency period of such diseases.
In addition rules 10, and 119 of the DCRs provide the Court with the discretion to dispense with or reduce usual procedures in urgent cases or where necessary for some other reason.
The established function and purpose of pleadings referred to Marini, Stanke and Pope continue to guide consideration of the sufficiency of the pleadings. However whether the pleadings define the issues for the Court and give fair notice to an opposing party necessarily involve the context which includes the nature of the cause of action and the relevant circumstances.
The second defendant’s application for further particulars
Para 6 of the second SOC pleads that the plaintiff was exposed to and inhaled asbestos dust and fibre when he was employed by the second defendant between about August 1950 and 1958.
Para 8 of the second SOC contains a pleading directed to the scope of the duty which the three defendants owed to the plaintiff. To the extent that it relates to the second defendant, it pleads that during the period of employment the second defendant “knew or ought to have known that exposure of the plaintiff to asbestos dust and fibre carried with it a foreseeable risk of injury”.
That assertion is followed by particulars which purport to set out the knowledge which each of the three defendants ought to have had in relation to the risks associated with exposure to asbestos by reference to an annexed document referred to as “Annexure A” and entitled “Particulars of Constructive Knowledge”. That part of Annexure A, relevant to the second defendant, states that it:
Ought to have been aware of the existence of the diseases of asbestosis, lung cancer and asbestos related pleural disease before the plaintiff commenced employment and during the plaintiff’s employment between August 1950 and 1958.
The basis upon which it ought to have been aware of the existence of such diseases was because it:
Ought to have been aware of publications, regulations and proclamations listed below, being 1 to 90 which were in the public domain at the time of or soon after their publication.
Annexure A then lists a number of publications totalling 114.
The second defendant’s position is that para 8 is inadequately pleaded as it does not address the concept of reasonable foreseeability of the risk of injury from exposure to asbestos insofar as it relates to the second defendant. It is submitted that Annexure A does not furnish particulars on the topic of the second defendant’s awareness of the risk of injury associated with exposure to asbestos because it is not directed to that topic but to constructive knowledge of the existence of certain diseases.
The second defendant also criticised the plaintiff’s reliance on the notion of “the public domain” in circumstances where there is no pleaded contention that the second defendant, as a reasonable employer, ought to have been aware of the material 1-90 in Annexure A. Absent such a pleading it was submitted that the notion of the “public domain” is immaterial to the conclusion referred to in para 8.
Mr Gilchrist, counsel for the second defendant, submitted that the failure to properly plead foreseeability, a critical element of a cause of action in negligence, arises from the lack of any meaningful content to support the conclusion that the second defendant knew or ought to have known that exposure to asbestos dust and fibre carried with it a foreseeable risk of injury. Therefore, he said, it fails to give fair notice of the plaintiff’s case resulting in substantial prejudice to the second defendant and the need for further particularisation to address that prejudice.
Relying on Stanke (para 92) Mr Gilchrist submitted that no extrinsic evidence of prejudice is required and that prejudice can be inferred from the nature of the pleading. In that regard he submitted that if the pleading stands, the second defendant would be required to address the accessibility of each individual publication in circumstances where the relevant events occurred some 60 years ago.
The plaintiff’s position is that his case is adequately pleaded and he resists an order for further particulars.
Para 8, insofar as it relates to the second defendant, does not plead actual knowledge of the risk of asbestos exposure. The plaintiff’s case, as disclosed by para 8, is that the second defendant ought to have known at the time that it employed the plaintiff that exposure to asbestos dust and fibre constituted a risk of injury.
Ms O’Connor, counsel for the plaintiff, submitted that the purpose of Annexure A is to list, in chronological order, those publications which existed at the last date of the plaintiff’s employment with the second defendant and those subsequent publications which outline the history of asbestos exposure in relation to different kinds of workers and different industries.
Ms O’Connor submitted that, at trial, the plaintiff will establish foreseeability by showing what the state of available knowledge was at the relevant time so that the Court can come to the conclusion that the employer, in fact, ought to have known about the risks associated with exposure. She referred to the way in which the Court reached a conclusion on foreseeability in Abel v Amaca Pty Ltd under NSW External Administrators s (formerly James Hardie & Co Pty Ltd) [2010] SADC 98, as an exemplar of this forensic approach. She submitted that the pleading is expressed in the only way that a plaintiff could frame such a pleading and that the pleading provides the second defendant with sufficient particulars to answer the assertion.
As to the issue of prejudice Ms O’Connor submitted that the attrition of time is not in itself a matter of prejudice to a defendant in a case of this kind.
I dismiss the second defendant’s application for further particulars. There is no substance in Mr Gilchrist’s first point that there is a disconnect between the intended conclusion in para 8, that exposure to asbestos dust and fibre carried with it a foreseeable risk of injury, and the commencing words of Annexure A, that the second defendant ought to have been aware of the existence of certain diseases. It is clear that the diseases referred to in the recital of Annexure A are the class of injury in respect of which it is alleged there was a foreseeable risk of injury as a result of exposure to asbestos dust and fibre. As the High Court said in Sydney Water Corporation v Turano and Anor (2009) 239 CLR 51 at para 45 “reasonable foreseeability of the class of injury is an essential condition of the existence of a legal obligation to take care for the benefit of another”. To that extent the pleading in para 8 is directly supported by Annexure A.
The use of the expression “ought to have known” in para 8 indicates that the plaintiff is imputing knowledge to the second defendant. It is imputing the knowledge that a person acting reasonably in all the circumstances of the case should have. (McPherson’s Ltd v Eaton & Ors (2005) 65 NSWLR 187 92-93)
The state of knowledge in the public domain, at the relevant time, as disclosed by the listed medical, scientific, government and industry publications, regulations and proclamations about asbestos related diseases, provides facts material to the assertion of foreseeability encapsulated in the phrase “ought to have known.” Such a pleading of constructive knowledge must be supported and in this case has been supported, by identification of what is said to be the relevant knowledge. It will then be a question of determining, at trial, whether an inference may be drawn from that state of knowledge about the foreseeability of a risk of injury to the plaintiff, who alleges exposure to asbestos dust and fibre in the course of his employment with the second defendant.
The linking of the conclusion that the second defendant “ought to have known” that exposure to asbestos dust and fibre carried with it a foreseeable risk of injury, with particulars of knowledge about the existence of asbestos related diseases, demonstrated by the existence of nominated publications in the public domain in para 8 and Annexure A, advise the reader, namely the Court and the other parties, of “the essential steps which establish the nominated cause of action” so that the reader can “understand the case that the plaintiff will be making for relief in the action”. Wunda Joinery Pty Limited (In Liquidation) & Anr v Wunda Projects Australia Pty Ltd & Ors [2007] SASC 301 at para 8.
Sufficient particulars have been provided to the second defendant to enable it to know the case against it and no substantial prejudice, by lack of particularity, has been demonstrated by the second defendant

The second defendant’s interlocutory application is dismissed.
The first defendant’s interlocutory application
This is an extensive application relating to many aspects of the second SOC. The first defendant has approached its application on the basis that, as the plaintiff is claiming that he suffered asbestos exposure when last employed by the first defendant some 60 years ago, and last employed at the first defendant’s premises in excess of 40 years ago, fairness requires that the second SOC contain information that is not ambiguous, vague and general.
By way of example the first defendant submitted that the pleadings are so general and vague as to make it impossible for it to have any proper understanding of the activities that were supposedly being carried out by the plaintiff or the circumstances surrounding those activities and the circumstances of his employment situation spanning some 23 years.
This submission is underpinned by the proposition that the pleadings cannot be expressed in a general way relying on the assumption that the defendant has background knowledge of the matters pleaded which it can use to understand the second SOC. Mr Roberts, counsel for the first defendant, said that such an approach is contrary to authority. He referred to Wunda Joinery at para 8.
In my view Wunda Joinery applies to a different scenario. It is directed to a situation where the plaintiff’s statement of claim pleads a matter in general or vague terms, rather than pinpointing particular events or transactions, on the assumption that the defendant will recognise the relevant events or transactions based on specific knowledge of the parties’ dealings. That situation is to be distinguished from this statement of claim where the subject of the pleading is the course of events occurring as part of the first defendant’s business. In such circumstances the first defendant can be assumed to have general knowledge of its own operations or business. I approach the first defendant’s application for further particulars on the basis that it should be imputed with such knowledge.
I also adopt the general approach to applications for further particulars recommended by Lunn J in Wunda Joinery at para 9. “A useful test for a meaningful and functional pleading is having read it do I believe that I understand the essence of the case being put forward by the pleader?” In adopting that approach it is also important to read the second SOC as a whole because the essence of the case may not be determined by taking specific paragraphs in isolation.
Paragraphs 5, 6 and 7 of the second SOC relate to the plaintiff’s exposure to asbestos and causation. I do not intend to traverse each of the first defendant’s complaints about the conclusions of fact pleaded in those paragraphs or the material facts pleaded in the particulars to each of those paragraphs. Paras 5, 6 and 7 use ordinary language to describe the circumstances of the plaintiff’s exposure to asbestos and Ms O’Connor has indicated that he has done so to the best of his recollection (tr 36); this includes the description of his work activities involving the use of asbestos, the work activities of others in his vicinity involving asbestos, the physical actions undertaken by himself and others which involved the liberation of asbestos, the environment in which he worked, the extent and frequency of his exposure to asbestos and the inhalation of what he believed to be asbestos dust and fibre.
The conclusions and material facts pleaded in para 5, 6 and 7, going to the issue of exposure, are necessarily general because of the nature of the claim and the passage of time. However they are unambiguous and comprehensible in the context of a defendant who is presumed to know its business, its operations and its arrangements with contractors engaged by it to perform work at its power station premises. The particulars provide fair notice to the first defendant, and convey the essence of the plaintiff’s case to the Court, about the processes which permitted the dissemination of asbestos and the first defendant’s failure to protect the plaintiff from asbestos. In any event if the pleadings are based on the plaintiff’s best recollection one might also ask what further particulars he can give?
I repeat those conclusions in relation to the first defendant’s complaints about the insufficiency of the description of the plaintiff’s exposure to “asbestos dust and fibre”, or the phrase “generally working with insulation material containing asbestos” or the phrase “applying asbestos loose or in composition.” The various ways in which the worker was exposed to asbestos are described using ordinary comprehensible language. Similarly the period when the plaintiff worked elsewhere than at the first defendant’s premises in the period between 1950 and 1958 has been set out in such a way that the period can be isolated.
The affidavit of Tina Deborah Tomaszewski filed on 7 April 2011 (exhibit 1 First Defendant 1) is relied upon to demonstrate the substantial prejudice which the first defendant will experience if further particulars of paras 5, 6 and 7 are not provided. Ms Tomaszewski deposes to the fact that the first defendant will be unable to obtain an expert’s report unless the plaintiff pleads further material facts about the identification of the material to which he was exposed and the circumstances of such exposure.
That proposition assumes that the plaintiff is the only source of the factual material upon which the assumptions to be put to the expert can be based. This again overlooks that it can be assumed that much of the information required for an expert report, as outlined in the letter of a Mr Pickford of Pickford Resources Pty Ltd, (annexed to exhibit 1 First Defendant 1), will be available to the first defendant through its knowledge of its own business. I reject the submission that the current pleading of paras 5, 6 and 7 results in substantial prejudice in the preparation of the first defendant’s case.
The first defendant joins in the second defendant’s position that para 8 and Annexure A fail to adequately plead foreseeability. Mr Roberts adopted Mr Gilchrist’s submissions. I have already dealt with those submission and have concluded that para 8 and Annexure A provide fair notice of the plaintiff’s case in relation to foreseeability.
Mr Roberts raised additional criticisms about para 8. Firstly he submitted that the use of an annexure outlining documentary material, relied upon to provide particulars of an assertion of constructive knowledge, is objectionable. He referred to Wunda Joinery and Coonawarra Premium Vineyards Ltd v Nugan Group Pty Ltd [2006] SASC 5 to support that submission. In both cases Judge Lunn concluded that it was not a proper pleading pursuant to the relevant Supreme Court Rules to provide particulars by reference to other documents and that such material should be expressly incorporated into a form of pleading. The rationale for this approach being that “the Court is entitled to have a single comprehensible document from which the plaintiff’s case can be readily understood”. (Wunda Joinery para 8)
In this instance the Annexure should be taken to form part of the second SOC. The documents referred to in Annexure A are adequately identified by title, author, name of publication and full date, or at least the year, of publication, as the basis of the plaintiff’s assertion of constructive knowledge. It is not disputed that the plaintiff has provided the three defendants with an expert librarian’s report to show the dissemination of the publications.
Inclusion of the actual data, other material and conclusions contained in the numerous documents, within the SOC, would hardly provide a short statement in support of the conclusion that the first defendant ought to have known about the risk of exposure to asbestos and, in any event, would involve the pleading of the evidence or arguments by which the fact of constructive knowledge, at the relevant times, is to be proved. I reject Mr Robert’s submission of resultant substantial prejudice.
The first defendant also criticised the assertion, in para 8, that the first defendant had actual knowledge of the risks associated with exposure to asbestos. Mr Roberts sought further particulars of the facts set out in Part 2 of the second SOC under the heading “Particulars of Claim for Exemplary Damages against ETSA”.
The pleading, para 3(c) (i) and (ii) provides particulars of two documents asserted to be in the first defendant’s possession upon which the assertion of actual knowledge is based. The pleading identifies a period of time when the first defendant came into possession of those documents and states, as a fact, that this was, at a time, when the plaintiff was exposed to asbestos dust. It identifies the subject matter, the provenance, the approximate date of receipt by the first defendant and the conclusion drawn by each document in respect of the particular dust disease, asbestosis.
Mr Roberts requested particulars as to the basis on which it was said that ETSA received the identified documents. This request is linked to another concern which the first defendant raised about para 8, and the particulars of negligence set out in para 14, concerning the identification of, and the content of the duty of care owed by the first defendant to the plaintiff.
The thrust of Mr Robert’s argument was that in paras 8 and 14 and in the particulars of Claim for Exemplary Damages there is insufficient articulation of, or differentiation between, the duty of care which the first defendant owed to the plaintiff as an employer and that which it owed as an occupier.
Three periods of exposure to asbestos are pleaded. It is alleged that during the first period, between 1946 and 1950, the plaintiff was employed by the first defendant at its Osborne B power station. It is alleged that during the second period, between 1950 and 1958, the plaintiff was employed by the second defendant, at the first defendant’s premises at the Osborne B power station except for a short identified period when he was employed by the second defendant at another location unassociated with the first defendant. It is alleged that during the third period, between 1965 and 1969 the plaintiff was employed by the third defendant at the first defendant’s premises at the Torrens Island Power station.
It was submitted that the relevant pleadings do not give fair notice to the first defendant of the scope of the duty asserted by the plaintiff and that further particulars are necessary to avoid substantial prejudice. It was submitted that the plaintiff should isolate the scope of the duty of care owed to him by the first defendant and differentiate between the scope of that duty, and the specific breaches of that duty, alleged against the first defendant as employer as opposed to occupier.
The basis upon which the first defendant owed a duty of care to the plaintiff is clearly articulated in the opening sentence of para 14 which states:
ETSA (as employer for the period November 1946 to August 1950 and as an occupier for the periods August 1950 to 1958 and 1965 to 1969) Babcock and Simon Carves were negligent by…
The first defendant can be in no doubt that this is a pleading about the scope of its duty of care to the plaintiff, as a person present at its business premises. For the first period the duty to the plaintiff was as his employer and for the two latter periods the duty was as an occupier of a place where the plaintiff was employed by another. The precise extent of the duty of care which the first defendant owed to the plaintiff, as an employer or as an occupier, will be a matter of findings based on the evidence at trial, the application of Part 6 of the Civil Liability Act 1936 and relevant principles contained in judicial authority. The first defendant has not established the relevant requirements for the provision of further particulars on that topic.
The first defendant seeks further particulars of para 11 of the second SOC which provides as follows:
At all material times ETSA and Simon Carves carried on ‘a prescribed industrial or commercial process’ within the meaning of section (2) of the Dust Diseases Act 2005 (SA) and the Dust Diseases Regulations 2006 (SA).
This pleading relates to the operation of an evidentiary presumption contained in s 8(2) of the DDA that:
A person who at a particular time carried on a prescribed industrial or commercial process that could have resulted in the exposure of another to asbestos dust will be presumed in the absence of proof to the contrary to have known at the relevant time that exposure to asbestos dust could result in a dust disease.
The “prescribed industrial or commercial process” and the “particular time” referred to above are determined by Reg 4 and Schedule 1 of the Dust Diseases Regulations 2006 which stipulate a variety of relevant dates for the operation of the evidentiary presumption, dependent upon the particular industrial or commercial process carried on by a person. For example, earlier relevant dates are prescribed for presumed knowledge on the part of the person carrying on mining and milling of asbestos and associated activities than apply to a person carrying on an industrial or commercial process concerned with the sale or installation of products containing asbestos.
As s 8(2) of the DDA reverses the onus, it is important that a pleading relying on presumed knowledge pursuant to that section is expressed clearly. In this instance it does not do so but is left to inference. The first defendant is entitled to know what part of the plaintiff’s case will be the subject of the evidentiary presumption and which will not; otherwise it will be substantially prejudiced in the preparation of its case. Further particulars are therefore appropriate.
Finally the first defendant sought further particulars of para 19 which pleads breach of contract in the following terms:
The plaintiff relies on the particulars of negligence and particulars of breach of statutory duties pleaded against ETSA, Babcock and Simon Carves as the particulars of breach of contract.
The first defendant seeks the following particulars:
By reference to the issues identified in respect of paragraph 14, what are the particulars that are relied on by the plaintiff to support a case against ETSA in contract relevant to the period between 1946 and 1950.
It seems clear to the Court from reading paras 14 and 19 of the second SOC that the pleading of a breach of contract is based on the term of a contract of employment, implied by law, that it is the duty of an employer to take reasonable care for the safety of his employee in the course of his or her employment. If that is so, the first defendant has fair notice that the breach is said to be constituted by the particulars of negligence contained in para 14 and no further particularisation is necessary. However, if the plaintiff relies upon some express term of the contract of employment, particulars should be given to ensure that the first defendant has fair notice of the case against it and is not substantially prejudiced by a failure to provide material facts to support the conclusion.
I grant the first defendant’s application for further particulars of para 11 of the second SOC and to the extent necessary, para 19 thereof.
In all other respects the application is dismissed.