Pascoe v Edsome Pty Limited & 3 Ors - [2009] NSWSC 795

CITATION: Pascoe v Edsome Pty Limited & 3 Ors [2009] NSWSC 795

HEARING DATE(S): 18/12/08-19/12/08

JUDGMENT DATE :
13 August 2009

JUDGMENT OF: Hidden J

DECISION: Proceedings dismissed.

CATCHWORDS: PROCEEDINGS FOR DAMAGES - disease contracted by conditions of employment - proceedings statute barred - no tenable evidence of causation - summary dismissal

LEGISLATION CITED: Workers Compensation Act 1987
Limitation Act 1969
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: Pascoe v Edsome Pty Limited & Ors [2007] NSWSC 472
Sea Coatings (Australia) Pty Limited & Ors v Pascoe [2008] NSWCA 54
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Commonwealth of Australia v Shaw [2006] NSWCA 209, 66 NSWLR 325

PARTIES: Jody Pascoe (Plaintiff)
Edsome Pty Limited (First Defendant)
Solitaire Pty Limited (Second Defendant)
Sea Coatings (Australia) Pty Limited (Third Defendant)
Sea Coatings Pty Limited (Fourth Defendant)

FILE NUMBER(S): SC 20726/2001

COUNSEL: A J McQuillen (Plaintiff)
T Moisidis (First Defendant)
J Catsanos (Second Defendant)
D J Hooke (Third & Fourth Defendants)

SOLICITORS: G H Healey & Co with Graeme R Jensen & Co (Plaintiff)
Vardanega Roberts (First Defendant)
Moray & Agnew (Second Defendant)
Ellison Tillyard Callanan (Third & Fourth Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Thursday 13 August 2009
20726/2001 Jody PASCOE

v

EDSOME PTY LIMITED & 3 ORS
JUDGMENT

The plaintiff, Jody Pascoe, has instituted proceedings in this Court against four companies seeking damages for personal injury said to have been suffered through his employment at various times by each of them. The defendant companies are:

Edsome Pty Limited (“Edsome”), first defendant;

Solitaire Pty Limited (“Solitaire”), second defendant;

Sea Coatings (Australia) Pty Limited (“Sea Coatings (Australia)”), third defendant;

Sea Coatings Pty Limited (“Sea Coatings”), fourth defendant.

2 The companies were related, and together they carried on the business of marine construction services under the trading name “Sea Coatings”. Put shortly, the plaintiff alleges that the defendants failed to provide a safe work environment and that he became ill through exposure to various chemicals and other noxious substances. He claims that he suffered pneumonia, pulmonary alevitis and sarcordiosis, together with consequential psychological problems.

3 The proceedings were instituted by a statement of claim filed on 17 August 2001. However, the periods during which the plaintiff alleges he was employed by the defendants are to be found in an amended statement of claim filed on 14 February 2002. In chronological order, they are:

by the third and fourth defendants, Sea Coatings (Australia) and Sea Coatings: between 1987 and 1990;

by the first defendant, Edsome: as a full-time employee between 1990 and 1996 and thereafter as a casual employee until 1999;

by the second defendant, Solitaire: as a casual employee between July 1996 and September 1999.

4 Before me are applications by the defendants that the statement of claim be struck out and that the proceedings be dismissed. Those applications must be considered in the light of the history of the proceedings.

5 In December…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWSC 795
Decision Date: 13 August 2009

CaseChat Overview and Summary

In Pascoe v Edsome Pty Limited & 3 Ors, the plaintiff, Mr Pascoe, sought damages from the defendants, Edsome Pty Limited and three other parties, for a disease he contracted as a result of his employment conditions. The case was heard in the Supreme Court of Victoria. The defendants argued that the proceedings were statute-barred, and Mr Pascoe could not provide sufficient evidence to establish a causal link between his employment and the disease.

The primary legal issues the court needed to address were whether the claim was barred by limitation and whether there was sufficient evidence to establish causation. The court had to determine if the plaintiff's claim was time-barred under the relevant statute of limitations and whether the plaintiff had provided enough evidence to establish that the disease was contracted due to the conditions of employment.

The court found that the claim was indeed statute-barred, as the plaintiff had not initiated the proceedings within the required time frame. Furthermore, the court held that there was no tenable evidence presented by the plaintiff to establish a causal link between the disease and the conditions of his employment. Consequently, the court dismissed the plaintiff's case and ordered that the proceedings be struck out.

The final orders of the court were that the plaintiff's case be dismissed and that the defendants be awarded costs. The dismissal was on the grounds that the claim was statute-barred and there was insufficient evidence to establish causation. The court also ordered that the plaintiff pay the costs of the proceedings to the defendants.

Orders