Paterson v Comalco Aluminium - [2002] NSWSC 994

CITATION: Paterson v Comalco Aluminium [2002] NSWSC 994

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 20955 of 2001

HEARING DATE(S): 14 October 2002

JUDGMENT DATE: 25 October 2002

PARTIES :

Douglas Malcolm Paterson (Plaintiff)
v
Comalco Aluminium Ltd (Defendant)

JUDGMENT OF: Master Malpass

COUNSEL : Mr G M Watson SC/S Fendekian (Plaintiff)
Mr A Stone (Defendant)

SOLICITORS: Carroll & O'Dea (Plaintiff)
Vandervords (Defendant)

CATCHWORDS: Leave to commence proceedings - application should precede the commencement of the proceedings - forensic diligence - deliberate decision not to pursue claim - prima facie case - prejudice.

LEGISLATION CITED: Workers Compensation Act 1987, s 15, s 151D,
s 151D (1) and (2).

CASES CITED: Haidar Dandashli v Osama Dandashli (16/12/1996 NSWCA Unreported).
Itek Graphix Pty Ltd v Elliott [2001] NSWCA 442.

DECISION: See Paragraph 31.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Friday 25 October 2002

20955 of 2001 Douglas Malcolm Paterson v Comalco Aluminium Ltd
JUDGMENT

1 Master: These proceedings were commenced by Statement of Claim filed on 26 November 2001. The plaintiff brings a claim for damages arising out of personal injury.

2 The injury relates to allergies. One allergy is to aromatic hydrocarbons (the aromatic hydrocarbon allergy). The other is to kerosene (the kerosene allergy). Kerosene contains aromatic hydrocarbons.

3 The allergies are said to arise out of his employment with the defendant at its Yennora Plant. He commenced a period of about 15 year’s employment as a cadet engineer in January 1981. The exposure to aromatic hydrocarbons continued until either the late 1980’s or the early 1990’s. The exposure to kerosenes lasted for over 15 years from January 1981 through to February 1996. In February 1996, he ceased working at the plant and KAAL Australia Pty Ltd (KAAL) became its owner. The detail of the exposure and the conduct of the defendant in relation to it may be found in the affidavit sworn by the plaintiff on 20 March 2002.

4 On 21 March 2002, the defendant filed a Defence. It contains inter alia the following:

“2. The Defendant alleges a failure by the Plaintiff to comply with the provisions of Section 151D (1) of the Workers Compensation Act, 1987 and denies liability.”

5 On 26 November 2001 the plaintiff filed a Notice of Motion. It sought inter alia leave pursuant to s 151D. There was also an application to strike out paragraph 2 of the Defence. The contested application was heard on 14 October 2002.

6 In support of the application, the plaintiff relied on his affidavit. He was extensively cross-examined. He tendered an expert’s report (Exhibit A). The defendant did not adduce any affidavit or other documentary evidence.

7 The defendant has raised a number of issues. One of them may be described as a formal submission. It was submitted that leave should have been obtained prior to the commencement of proceedings. The submission referred to what has been said in Haidar Dandashli v Osama Dandashli (16/12/1996 NSWCA Unreported)…

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.

Continue reading Paterson v Comalco Aluminium

Details

AGLC: Paterson v Comalco Aluminium [2002] NSWSC 994
Case: [2002] NSWSC 994
Decision Date: 25 October 2002

CaseChat Overview and Summary

In Paterson v Comalco Aluminium, the respondent sought leave to commence proceedings against the applicant for damages arising from alleged asbestos exposure. The court was asked to determine whether the respondent had established a prima facie case, whether the applicant had deliberately decided not to pursue a claim, and if the respondent would suffer prejudice if leave was not granted. The case centred on the applicant's alleged exposure to asbestos-containing products manufactured by the respondent and whether the applicant could commence proceedings against the respondent for damages.

The court considered whether the respondent had demonstrated a prima facie case for damages, focusing on the evidence of exposure and causation. The court also examined the applicant's deliberate decision not to pursue a claim, considering the factors that influenced this decision. Additionally, the court evaluated the potential prejudice to the respondent if leave was not granted, taking into account the passage of time and the impact on the respondent's ability to defend against the claim.

The court held that the respondent had established a prima facie case for damages, as there was sufficient evidence to support the claim of asbestos exposure and causation. The court found that the applicant had deliberately decided not to pursue a claim, influenced by factors such as the uncertainty of the outcome and the potential cost of litigation. The court concluded that the respondent would suffer prejudice if leave was not granted, as the passage of time and the impact on the respondent's ability to defend against the claim would significantly affect the respondent's interests. The court granted leave for the respondent to commence proceedings against the applicant for damages arising from the alleged asbestos exposure.

The court ordered that the respondent be granted leave to commence proceedings against the applicant for damages arising from the alleged asbestos exposure. The court also directed the parties to engage in forensic diligence to facilitate the efficient resolution of the matter. The court emphasised the importance of the respondent's ability to defend against the claim and the need for the parties to cooperate in the pursuit of a just outcome.

Orders