(Re Mourikis) Comcare v Patrick Operations Pty Ltd

[2010] NSWDDT 6

Dust Diseases Tribunal

of New South Wales

CITATION:	(Re Mourikis) Comcare v Patrick Operations Pty Ltd [2010] NSWDDT 6
PARTIES:	Comcare (Cross-Claimant) Patrick Operations Pty Ltd (Cross-Defendant)
MATTER NUMBER(S):	365/09/1
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- claim removed from Claims Resolution Process - mediation - whether provisions on apportionment should apply subject to modification
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007 Dust Diseases Tribunal (Standard Presumptions - Apportionment) Order 2007
DATES OF HEARING:	30 March 2010
DATE OF JUDGMENT:	30 March 2010
EX TEMPORE JUDGMENT DATE:	30 March 2010
LEGAL REPRESENTATIVES:	J Bird of Blake Dawson appeared for the Cross-Claimant J A D deGreenlaw instructed by McCulloch & Buggy appeared for the Cross-Defendant

JUDGMENT:

RULING

O'MEALLY P

1. On 14 December 2009, Christos Mourikis issued a statement of claim seeking damages from Comcare. He alleged that in the course of his employment as a stevedore, he was exposed to asbestos dust and fibre, and as a consequence contracted malignant mesothelioma of the pleura. His claim has been settled.

2. On 19 February 2010, Comcare issued a cross-claim against Patrick Operations Pty Ltd (Patricks), seeking contribution or indemnity saying that Patricks is a person who, if sued by the plaintiff, would have been liable to him.

3. The plaintiff's claim and the defendant's cross-claim became subject to the Dust Diseases Tribunal Regulation 2007 (the Regulation). On 29 March 2010, the plaintiff's claim was removed from the Claims Resolution Process (CRP) established by the Regulation. It was removed pursuant to cl 22(1)(a) of the Regulation on the ground of urgency. At that time, mediation was ordered and as, a consequence of that mediation, agreement has been reached between the plaintiff and the defendant. Consideration of the application of Div 5 of the Regulation, which relates to contribution, was deferred.

4. Comcare now seeks that the Registrar appoint a Contributions Assessor in order to determine the liability which it and Patricks should bear to pay the plaintiff's damages.

5. Mr deGreenlaw of counsel appears for Patricks. He does not, nor could he oppose the appointment of a Contributions Assessor, but he has asked me for an order that pursuant to cl 22(7)(a)(ii), that the reference to the Assessor be subject to a modification, the modification being that the contributions determination proceed on the basis that “Patricks should not be assumed to be liable”. He says the presumption upon which the Contributions Assessor will be required to proceed in accordance with the Dust Diseases Tribunal (Standard Presumptions – Apportionment) Order 2007 (the Order), cannot be factually established. This is because the plaintiff would be unable to give evidence concerning the extent of exposure while he was employed by Patricks because he does not know.

6. Annexed to the defendant's reply is a copy of a letter from the plaintiff's solicitors to the defendant's solicitors, providing particulars. Relevantly, the plaintiff’s solicitors wrote:

1. The Plaintiff worked for United Stevedoring, Patricks and Phillips. He also worked for other stevedoring companies, the names of which he does not recall.

2. The Plaintiff estimates that the time he spent working for United Stevedoring, Patricks, and Phillips constituted half the time he spent working on the waterfront.

3. Out of United Stevedoring, Patricks, and Phillips, the Plaintiff most frequently worked with asbestos cargo for Phillips. Unfortunately, his recollection does not allow the plaintiff to answer this request for particulars with any greater specificity than this.

7. It is on the basis of the inability of the plaintiff to estimate the level of exposure while he was employed by Patricks, that Mr deGreenlaw seeks that the provisions of Div 5 upon which the contributions determination will be made, be varied.

8. I am sympathetic to the position of Mr deGreenlaw's client. As has been observed in the Court of Appeal, the regime established by the Regulation is “arbitrary” and “rough and ready”. A contributions determination proceeds upon the basis that parties sued or joined to the proceedings are liable, without there having been a determination upon the merits.

9. To modify the provisions of Div 5 as Mr deGreenlaw suggests would, it seems to me, be inimical to the effective operation of the CRP. The relevant provisions of the Regulation require the contributions determination to be made as if the cross-defendant is liable, but it remains open to the cross-defendant to dispute the apportionment determined by the Contributions Assessor.

10. It is still open to Mr deGreenlaw to apply under cl 39(1) of the Regulation that the plaintiff be required to give evidence before the mediator on matters relevant to his client’s liability to contribute to the plaintiff’s damages, but subject to sub cl (5). The plaintiff’s evidence thus taken is admissible on the determination of a dispute on contribution (cl 39(7)). It is also open to Patricks to identify in its reply reasons for and the extent to which it contends that the standard presumption should be varied (cl 4(1)(2) of the Order).

11. For the above reasons I decline to accede to the application of Mr deGreenlaw.

12. In the plaintiff’s action there will be verdict and judgment in accordance with par 1 of the Order. I note pars 2, 3, 4 and 5.

13. The orders are:

The Registrar is to appoint a Contributions Assessor within 21 days.

The cross-defendant to file a reply within 14 days.

The apportionment is to be completed within 28 days.

R Sandhu of Slater & Gordon appeared for the Plaintiff

J Bird of Blake Dawson appeared for the Defendant/Cross-Claimant

J A D deGreenlaw instructed by McCulloch & Buggy appeared for the Cross-Defendant