Resi Corporation v Bradford Insulation (SA) Pty Ltd (in Liquidation) & BI (Contracting) Pty Ltd
[2017] SADC 28
•31 March 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
RESI CORPORATION v BRADFORD INSULATION (SA) PTY LTD (IN LIQUIDATION) & BI (CONTRACTING) PTY LTD
[2017] SADC 28
Judgment of His Honour Judge Jennings
31 March 2017
PROCEDURE
Application by the Defendant seeking an order that certain of paragraphs of the Third Party’s defence be struck out or alternatively that it be directed to amend its pleadings to provide further particularity – Relevant principles considered and discussed – Application partially granted.
Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 s 6; Supreme Court Rules 2006 R 98(2)(b), referred to.
Geyer v Resi Corporation [2013] SADC 122; Williams v Australian Telecommunications Commission (1988) 52 SASR 215; Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34, 59 ALJR 492; BI (Contracting) Pty Ltd v University of Adelaide [2008] NSWCA 210, considered.
RESI CORPORATION v BRADFORD INSULATION (SA) PTY LTD (IN LIQUIDATION) & BI (CONTRACTING) PTY LTD
[2017] SADC 28
This is an application made by the defendant Resi Corporation in respect of the defence filed by the third party, Bradford Insulation (SA) Pty Ltd (In Liquidation).
Resi complains about certain pleadings contained within Bradford’s defence and seeks an order that the offending paragraphs be struck out or in the alternative that Bradford amend its pleadings so as to provide further particulars.
This action is a secondary action following a primary action that was between Mr Allan Geyer and Resi. In that action for reasons published by me on 30 August 2013,[1] I gave judgment for Mr Geyer against Resi in the sum of $327,474, having found that Mr Geyer had suffered personal injury, loss and damage as a result of Resi’s negligence.
[1] Geyer v Resi Corporation [2013] SADC 122.
The action was based on the assertion that Mr Geyer had contracted mesothelioma as a result of his exposure to asbestos during the course of his employment as a boilermaker/welder, leading hand boilermaker, assistant foreman and mechanical foreman at Resi’s Playford Power Stations between about 14 July 1957 up until September 1986 and that this exposure occurred as a result of Resi’s negligence.
In finding in Mr Geyer’s favour I made the following findings:
The plaintiff performed repairs to boiler walls, removing panels which covered boiler walls to repair the steel vertical tubes behind the walls. Underneath the boiler walls were asbestos blocks. Bradford Insulation installed, cut and removed the asbestos blocks so that other workers could work on the tubes below. Bradford Insulation employees were working whilst the plaintiff and others were in the same area. The workers from Bradford Insulation stood on the same platform which was about 1½ metres wide with the plaintiff and worked in the same proximity. The plaintiff spent two out of every eight hours of his work on boilers in the vicinity of other people cutting insulation.
The plaintiff performed this work until 1959 when he was promoted. About 50% of his time during this period was spent out in the Power Station performing boiler repairs.
In 1959 the plaintiff was promoted to leading hand and began working primarily in the boiler shop. It was approximately 150 feet in length. His job was to supervise others working in the boiler shop. Later still, the plaintiff was promoted to assistant mechanical foreman, which involved not only being responsible for the boiler shop, but also the coal conveyor system. In 1963 he was again promoted to mechanical foreman. Shortly before the plaintiff’s retirement he was promoted to acting mechanical workshops engineer.
As the plaintiff’s career continued with ETSA in his various supervisory roles, he continued to work in the boiler shop in a hands-on role assisting the men with the work and working closely with them to check that the work was being done correct. This involved continuing to work in the vicinity of others brushing down metal items which still had bits of insulation on them in the boiler shop.
Asbestos blankets were also used for heat protection in the boiler shop. They were about 2 metres by 1 metre in size. The plaintiff understood that the blankets contained asbestos and came from the stores department. The blankets were used to help keep the temperature up on metal items to ensure that welding was carried out correctly. Welding work that required asbestos blankets took between 8 and 10 hours. Dust came off the blankets; a light dust which fell to the floor when the blankets were being wrapped around items. The blankets deteriorated over time with holes appearing in them. The blankets were sometimes cleaned by shaking them before putting them back in the store. Dust was left on the floor when this happened.
The asbestos blankets were also used out in the Power Station. They were used to lay over gratings to protect people working below when welding work was being carried out. Dust was created when the blankets were used.
The boiler shop was a particularly noisy area. As a result of noise a contract was let for soundproofing of the walls of the boiler shop. Asbestos was sprayed on the boiler shop walls in 1967. The sprayed asbestos was installed the full length of the boiler shop wall about 150 feet in length. It was installed on both sides of the shop and also on one end the northern end. The sprayed asbestos was installed 26 feet high to the height of underneath the crane runway. The sprayed material was a grey matted material which was sprayed on semi-dry and then patted smooth. Once installed it dried out. If the wall was touched or damaged the sprayed asbestos would flake off. The plaintiff testified that ‘it was quite flimsy in a sense. If it was damaged it would flake off’.
The wall was damaged on occasions as a result of steel bumping against the wall which created more dust. The plaintiff was close by on occasions when this happened.
In 1979 acrylic paint was sprayed over the top of the asbestos wall. However for the 12 years that the asbestos remained unprotected, the plaintiff worked primarily in the boiler shop. The plaintiff visited the boiler shop during the application of paint over the top of the asbestos wall. Even after the spray paint was applied, the walls continued to be damaged by steel swinging around on the crane. Dust was created by the damage.[2]
[2] Geyer v Resi Corporation [2013] SADC 122 at paras 289-297.
It can be seen that I found that Bradford Insulation installed, cut and removed the asbestos blocks in the vicinity of Mr Geyer; that Mr Geyer was exposed to dust from asbestos blankets and to dust from asbestos that had been sprayed on the boiler shop walls within the plant in 1967.
In light of these findings and other alleged facts, Resi has prosecuted a secondary action against Bradford seeking indemnity or contribution from Bradford.
Section 6 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001, creates a right of contribution. It relevantly provides as follows:
(1) A person who is liable in damages for harm suffered by another may recover contribution from a third person who is also liable in damages for the same harm.
...
(3) An action for contribution may be brought—
(a) by way of third party proceedings, or proceedings between the parties, in an action in which damages are sought from the person entitled to contribution; or
(b) by way of a separate action brought within the relevant time limit against the person from whom contribution is sought.
…
(5) The contribution is to be an amount that is fair and equitable having regard to the extent of each contributory's responsibility for the harm.
(6) In determining the contribution to be made by a contributory whose liability for the harm is a derivative liability, the court is to have regard to the act or omission from which the liability arose.
(7) If it is fair and equitable to do so, the court may exempt a person from liability to make contribution or order that the contribution to be recovered is to amount to a complete indemnity.
Resi contends that Bradford is liable in damages for the same harm that was the subject of Mr Geyer’s successful action against it.
At issue before me is whether the defence filed by Bradford in connection with the pleaded claim made against it by Resi conforms to the requirement of pleadings as described by King CJ in Williams v Australian Telecommunications Commission:
… 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.[3]
[3] (1988) 52 SASR 215 at 216.
The contribution to which Resi may be entitled to from Bradford is the amount that is fair and equitable having regard to the extent of its and Bradford’s responsibility for the harm caused to Mr Geyer. In determining that exercise the High Court in Podrebersek v Australian Iron and Steel Pty Limited held that the proper approach:
...involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.[4]
[4] [1985] HCA 34 at para 10; [1985] HCA 34; 59 ALJR 492 at 494.
In that context, and amongst other things, Bradford in its defence alleges that at various alternative relevant times, Resi had actual knowledge of the danger of asbestos. It says that this is very relevant to the comparative examination of the whole conduct of Resi’s conduct, relative to Bradford’s conduct.
For example, the pleadings allege that “by at least 14 July 1957”, “by at least 24 September 1959,” and “by at least 24 September 1961” etc Resi knew of the risks and dangers of asbestos.
Resi complains that without further particularity as to why such knowledge can be inferred it is left to guess what Bradford’s case against it on this issue is and that the pleadings therefore fail to give it fair notice of the case to be made against it at trial.
Amongst other things Bradford alleges that it can rely upon the decision of the NSW court of Appeal in BI (Contracting) Pty Limited v University of Adelaide[5] to establish the Resi had actual knowledge of the risks and dangers of asbestos by reason of the existence of certain literature about such risks and dangers that was in existence in 1961. I assume that Bradford will argue that if a finding of actual knowledge can be inferred as against the University of Adelaide such a finding can also be inferred as against Resi.
[5] [2008] NSWCA 210.
Resi complains that that is unfair because that does not reflect what the case actually found.
Having found that BI had actual knowledge the Judge said:
The University did not. Why it did not mystifies me. What was it teaching its medical, engineering and architectural students in 1961? I would have thought a University with a medical school in 1961 would have been teaching its students about mesothelioma and about the Wagner paper. The University’s failing on this point is so far from acceptable standards in my view that it should not benefit from its ignorance.
Resi contends that if this pleading is allowed to stand it will be embarrassed and prejudiced.
Amongst other things Bradford alleges that some of the asbestos that Mr Geyer was exposed to at Resi’s Playford Power Station was not asbestos that it had supplied. It says that this is very relevant to the comparative examination of the relative importance of the acts of Resi and Bradford in causing the damage that Mr Geyer suffered.
In particular Bradford alleges that Mr Geyer was exposed to:
·Asbestos cloth or blankets;
·Asbestos rope;
·Preformed asbestos pipe sections;
·Asbestos composition;
·Asbestos gloves;
·Asbestos gland packing; and
·Asbestos gaskets.
Resi complains that in view of the absence or paucity of evidence in the primary action about these alleged sources of asbestos exposure it is left to guess what Bradford’s case against it on this issue is and that the pleadings therefore fail to give it fair notice of the case to be made against it at trial.
Amongst other things Bradford also alleges that Resi knew that asbestos free products were available and chose not to use them thereby unnecessarily exposing Mr Geyer to dangerous products.
Resi complains that without knowing when such products became available for use in lieu of asbestos and when it allegedly became aware of the existence of such products it will be embarrassed and prejudiced.
Consideration
The actual knowledge pleadings
Bradford does not have to plead the evidence upon which it intends to rely in support of its allegations. If there are documents or if there is other evidence from which knowledge may be inferred, so be it. I struggle to see why Bradford would be expected to disclose those in its pleadings. Indeed, if it did so it might be criticised for breaching Rule 98(2)(b) of the Supreme Court Rules 2006 which stipulates that a pleading “must state only material facts…and not the evidence by which the facts are to be proved.” As for suggested surprise, I would have expected discovery and inspection of documents would go a long way to flushing out what Bradford will be relying upon. In my view Resi’s complaints on this topic fail.
The University of Adelaide pleading
Resi is right to submit that there was no finding in BI (Contracting) Pty Limited v University of Adelaide that in 1961 the University of Adelaide had actual knowledge of the risks and dangers of asbestos.
The case may encourage a line of argument by Bradford that in terms of comparative culpability Resi’s apparent lack of knowledge was inexplicable and that this should weigh heavily against it in terms of its claim for contribution, but that is not an appropriate matter for pleadings. Rule 98(2)(b) of the Supreme Court Rules 2006 also stipulates that a pleading should not state the arguments by which facts and matters are to be proved. This pleading should be struck out.
The other asbestos products pleadings
I repeat Bradford does not have to plead the evidence upon which it intends to rely upon in support of its allegations. There was some evidence in the hearing before me that would support a finding that Mr Geyer was exposed to asbestos not supplied by Bradford. It is true that the allegations made by Bradford about the range of asbestos products that Mr Geyer was allegedly exposed to goes further than the evidence. But Bradford is not limited to the evidence adduced at the trial of the primary action. If there are inconsistencies it will be open for Resi to comment on that. In my view Resi’s complaints on this topic fail.
The asbestos free products pleadings
A statement as to when Resi knew that asbestos free products were available is a statement of fact, not evidence. In my view without that information there is a real risk of Resi being surprised and prejudiced in its defence of the allegation at trial. In my view further particulars are necessary to minimise that risk.
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