Paul Anthony McFarlane v Boral Ltd

[2002] NSWDDT 4

Reported Decision (2002) 23 NSWCCR 404

Dust Diseases Tribunal

of New South Wales

CITATION:	Paul Anthony McFarlane v Boral Ltd [2002] NSWDDT 4
PARTIES:	Paul Anthony McFarlane Boral Ltd
MATTER NUMBER(S):	218 of 2000
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Jurisdiction :-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	25 March 2002
DATE OF JUDGMENT:	04/16/2002
LEGAL REPRESENTATIVES:	FOR APPLICANT ON MOTION:Mr F Tuscano instructed by W H Parsons and Associates FOR RESPONDENT TO MOTION Miss K Legg of Moray and Agnew Mr G P F Rundle instructed by Keddies appeared for Michael Gordon

JUDGMENT:

1. On 27 September 2000 the plaintiff, Paul McFarlane issued a statement of claim in this Tribunal claiming damages against Boral Ltd in respect of his disease of asthma alleging that the disease was caused by dust inhaled by him in the course of his employment with the defendant. An amended statement of claim asserted further injury by way of "reactive airways dysfunctional syndrome".

2. The plaintiff has alleged in his pleading that as a consequence of his injuries he was totally incapacitated for work from August 1998. The defendant Boral has filed a defence denying both breach of duty and injury.

3. On 5 November 2000 the plaintiff suffered head injuries including cerebral haemorrhage and brain damage as a passenger in an accident involving a motor vehicle driven by Michael Gordon.

4. His present application is that he have leave to amend his statement of claim so as to claim damages against Michael Gordon and allege against that defendant that as a result of his head injuries he has also suffered a loss of earning capacity.

5. The defendant Boral has commissioned neuropsychological assessment of the plaintiff and it may be assumed that it will contend at the trial that any liability it may have in respect of the plaintiff’s loss of earnings is limited to the period ending as at the date of the supervening incapacity caused by the head injury.

6. It is the plaintiff’s present contention that because the cause of his lost earning capacity after the motor vehicle accident is at issue between himself, Boral and Michael Gordon, separate trials of his actions may give rise to differing and incompatible findings of fact as to the cause of that loss, resulting in the appearance of unfairness and possible injustice.

7. He asserts that the Tribunal has jurisdiction to determine the motor vehicle claim concurrently with his present claim against Boral pursuant to the provisions of s 11(4) of the Dust Diseases Tribunal Act 1989. S 11 of the Act is in the following relevant terms:

(1) If -
(a) a person is suffering, or has suffered, from a dust related condition, or a person who has died was, immediately before his death, suffering from a dust related condition; and

(b) it is alleged that the dust related condition was attributable or partly attributable to a breach of duty owed to the person by another person; and

(c) the person who is or was suffering from the dust related condition or a person claiming through that person would, but for this Act, have been entitled to bring an action for the recovery of damages in respect of that dust related condition or death,

proceedings for damages in respect of that dust related condition or death may be brought before the Tribunal and may not be brought or entertained before any other Court or Tribunal.

. . .

(3) If the cause of action giving rise to proceedings to be brought under (1) also gives rise to a claim in respect of some other matter, the claim may be included in these proceedings even though it does not relate to a dust related condition from which a person is suffering or has suffered.

(4) Any matter that is ancillary or related to a matter that is a subject of proceedings to be brought under (1) may also be included in those proceedings.

(5)....

8. The defendants Boral and Michael Gordon have interests which are not compatible. If the plaintiff is totally incapacitated for employment a question arises as to which event or combination of events caused the loss for which lost income is claimed. One subject of the proceedings against Boral is whether the injuries caused by the motor vehicle accident were sufficient to deprive the plaintiff of his earning capacity in any event. This is also a matter the subject of the claim against Gordon. Are those matters "related" within the meaning of s 11(4)?

9. The width of the phrase "related to" or "relating to" is undoubted. Lord McNaughton in Commissioner of Inland Revenue v Maple and Co (Paris) Ltd [1908] AC 22 at 26 stated that: "There is no expression more general or far reaching."

10. In Tooheys Ltd v Commissioner of Stamp Duties (NSW) (1961) 105 CLR 602 at 620 Taylor J said:

... the expression " relating to" .. is ... vague and indefinite... and ..." leaves unspecified the plane upon which the relationship is [to be] sought and identified."

11. As Fitzgerald JA concluded in Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 186 ALR 211 at 225:

Overall the position judicially adopted has been that the operation of the phrase " relating to" is determined by the statutory context and purpose.

12. In similar terms Mahoney J in Mangion v James Hardie & Coy Pty Ltd (1990) 20 NSWLR 100 said in relation to the provisions of s 11(3) of the Dust Diseases Tribunal Act:

In my opinion, if the generality of " in respect of" is to be conditioned, it is to be conditioned by reference to the objective which the legislation sought to achieve and the means it chose to achieve it.

13. The intention of parliament in enacting the Dust Diseases Tribunal Act was adressed by Mahoney J in Mangion where he said (at 108 to 109):

The legislature no doubt had in mind that, under the pre-existing law, the person affected by such a condition or his legal personal representative might bring proceedings first in the Compensation Court and then in the Supreme or District Court for damages; and on his death his wife or other relatives might then bring proceedings in the Compensation Court and in the Supreme or District Courts. The experience of multiple litigation in motor vehicle and industrial accident cases was, I think, seen by the legislature as a mischief to be avoided in dust related condition cases. The object of avoiding multiple litigation would to that extent be defeated if claims by relatives, and in particular claims by them under the Compensation to Relatives Act, were not to be brought before the Tribunal. In addition the legislature no doubt saw as a mischief to be avoided the possibility of inconsistent decisions in different Courts or Tribunals in respect of claims based upon a dust related condition. The avoidance of such inconsistency or at least the not infrequent arguments as to the effect of estoppel was also, I think, before the mind of the legislature.

14. In Seltsam Pty Ltd and Anor v Energy Australiaand Ors [1999] NSWCA 89, Giles JA thought that the objectives of the Act included ... "avoidance of multiplicity of litigation and enhanced consistency of decision making" ... (par 50).

15. The means by which parliament chose to achieve these objectives included the enactment of s 33(1) of the Dust Diseases Tribunal Act 1989 in the following terms:

(1) Until Rules are made under (3), the Rules of Court of the Supreme Court apply, with necessary modifications and to the extent that they are not inconsistent with this Act, to proceedings before the Tribunal and to matters in respect of which the Tribunal has jurisdiction in the same way as they apply to proceedings before the Supreme Court and to matters in respect of which that Court has jurisdiction.

(2) While Rules of Court of the Supreme Court apply to proceedings before the Tribunal and to matters in respect of which the Tribunal has jurisdiction, those Rules shall, subject to this Act, be taken to be Rules of the Tribunal for the purposes of this Act.

16. S 33 has since been amended by the deletion of s 33(1) and (2). The Rules of the Supreme Court have been adopted pursuant to the rulemaking powers of the Tribunal. However, it may be inferred that the legislature, pursuant to its policy of avoiding multiplicity of litigation and the possibility of inconsistent findings, intended that the Tribunal have and exercise jurisdiction equivalent to that of the Supreme Court to join parties to several causes of actions where common issues of fact arise. I conclude that s 11(4) confers jurisdiction in this Tribunal to join defendants to a proceeding where, if the principal action were to be tried in the Supreme Court, that Court would have, and exercise, powers conferred by the rules of that Court, to add additional defendants to the proceedings.

17. Pt 8 r 2 of the Supreme Court Rules provides as follows:

Joinder of Parties Generally

2 Two or more persons may be joined as plaintiffs or defendants in any proceedings -

(a) where -

(i) if separate proceedings were brought by or against each of them, as the case may be, some common question of law or fact will arise in all the proceedings; and

(ii) all rights to relief claimed in the proceedings (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or

(b) where the Court gives leave to do so.

18. This Rule permits different plaintiffs to join several causes of action against different defendants. So long as the joinder reflects a sufficient commonality of law, fact or transaction, it is permissible even if a particular defendant is not affected by the whole of the relief sought (Ritchie’s Supreme Court Procedure p 2216).

19. In the present circumstances both conditions of par(a) cannot be satisfied because all rights to relief claimed by the plaintiff do not arise out of the same transaction. However, Pt 8 r 2(b) permits the Tribunal to give leave to the plaintiff to join defendants in other cases where common questions of law or fact arise.

20. In deciding whether leave should be granted, "the basic principle is that the Court should take the course that is most conducive to the just resolution of the dispute having regard to the desirability of limiting the cost and delay of litigation. Relevant considerations include the costs and time saved by the joinder, as against any potential unfairness that may be occasioned to any party". (Ritchie p2217).

21. Both Boral and Michael Gordon oppose joinder of Michael Gordon in the plaintiff’s proceedings against Boral, which joinder will in their submission increase costs. If each defendant were to attend during that part of the trial occupied with the issue of liability involving the other, that would be so, to no advantage. On the other hand it may be to the advantage of each to attend and participate in those parts of the trial concerned with the relative contributions to incapacity made by lung disease and brain injury. The matter of costs in the circumstances is neutral.

22. The question of fairness is, I believe, decisive. Although it was the plaintiff’s fear that he may receive inconsistent and adverse findings on the issue of economic loss if the trials are held separately, which led to this application, it is in the interests of justice to the defendants that leave be granted.

23. If the plaintiff is to press his claim for damages in the one proceeding, his opportunities for inconsistency to the prejudice of the defendants will be limited by the exigencies of forensic election and possibly by the rules.

24. Pt 15 r 17(1) and r 17(2) provide as follows:

17(1) A party shall not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with a previous pleading of his.
(2) Subrule (1) does not affect the right of a party to make allegations of fact or raise grounds or claims, in the alternative.
Pt 15 r 26(1) provides as follows:
26(1) Where a pleading
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings, on terms, order that the whole or any part of the proceedings be struck out.

25. Inconsistency of alternative factual allegation does not necessarily render a pleading bad. The primary question is whether the alternative allegations cause embarrassment or inconvenience. A pleading will be embarrassing if it relies on inconsistent allegations one of which must be false to the knowledge of the pleader. (Ritchie p2366; Issitch v Worrell (2000) 172 ALR 586).

26. I have formed no concluded view as to whether the plaintiff may amend his statement of claim in the terms proposed without the inconsistent claims for loss of earnings constituting an embarrassment or departure. The question has not been argued before me. The plaintiff may perhaps without departure put to the court "after contracting my disease of asthma and before the motor vehicle accident I suffered from these (stated) limitations and I could not find work" and leave the court to come to its own conclusion as to whether the plaintiff was totally incapacitated for work before the motor vehicle accident. If on the other hand the plaintiff were to have himself concluded that before the motor vehicle accident he was totally unemployable and consciously abandoned the job market, the subsequent pleading against Michael Gordon may constitute an embarrassment or departure.

27. The provision of particulars and service of medical reports in this case may lead to refinement of pleadings making it unnecessary to decide such an issue. Similarly, forensic election on the part of the plaintiff’s advisers may prevent the possibility of embarrassment.

28. These processes, which should lead to a just resolution of the plaintiff’s claim, are most conveniently assisted if inconsistent claims are brought in the one proceeding.

29. I grant leave to the plaintiff to amend the statement of claim in Dust Diseases Tribunal proceedings 218 of 2000 so as to join as the second defendant, Michael Gordon.

Mr F Tuscano instructed by W H Parsons and Associates appeared for the plaintiff.

Miss K Legg of Moray and Agnew appeared for the defendant.

Mr G Rundle instructed by Keddies appeared for Michael Gordon.