Ryan v British and American Tobacco Services Ltd

[2003] NSWDDT 8

Dust Diseases Tribunal

of New South Wales

CITATION:	Ryan v British and American Tobacco Services Ltd [2003] NSWDDT 8
PARTIES:	William Edward Ryan British and American Tobacco Services Ltd
MATTER NUMBER(S):	461 of 2002
JUDGMENT OF:	Curtis J at 1
CATCHWORDS:	Miscellaneous Matters :- Pleadings
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	15 April 2003
EX TEMPORE JUDGMENT DATE :	04/15/2003
LEGAL REPRESENTATIVES:	FOR PLAINTIFF: Mr J Rush QC with Mr A L McSpedden instructed by Turner Freeman FOR DEFENDANT Mr S J Rushton SC with Mr P R Whitford onstructed by Corrs Chambers Westgarth

JUDGMENT:

1. The defendant moves the court pursuant to Pt 15 r 26 of the Supreme Court Rules that this statement of claim be struck out. The contentions by the defendant are threefold. First, that the statement of claim discloses no reasonable cause of action. Secondly, that the statement of claim has a tendency to cause prejudice in that it does not afford the defendant the opportunity to know what case it must meet at the trial. Thirdly, the statement of claim fails to plead facts sufficient to enliven the jurisdiction of the Tribunal.

2. Pleadings have two functions; first, to prevent vexation to the Court and to a defendant by requiring a court to entertain and the defendant to face only those actions which are not futile; the facts alleged must disclose a cause of action. Secondly, pleadings should afford procedural fairness to a defendant so that it is not surprised at the trial by allegations of fact not foreshadowed in the particulars.

3. The first complaint of the present defendant is that the present statement of claim discloses no cause of action. The pleading recites that in about 1960 when the plaintiff was a minor he commenced smoking Benson and Hedges brand cigarettes and continued smoking until about 1996. It recites that the defendant at relevant times manufactured and marketed cigarettes including Benson and Hedges brand cigarettes with the knowledge that such cigarettes would be purchased and smoked by smokers in the condition in which they were manufactured. It recites that cigarettes create a risk of health to smokers, that the defendant knew or ought to have known of that risk, that it did not warn the plaintiff and that in consequence he has suffered injury and damage.

4. Those short facts are sufficient to describe the duty owed pursuant to the decision of the Privy Council in Donoghue v Stevenson [1932] AC 562. In Grant v Australian Knitting Mills [1936] AC 85 the Privy Council said this at 103:

In Donoghue’s case the duty was deduced simply from the facts relied on-, namely, that the injured party was one of a class for whose use, in the contemplation and intention of the makers, the article was issued to the world, and the article was used by that party in the state in which it was prepared and issued without it being changed in any way and without there being any warning of, or means of detecting, the hidden danger.

5. A complaint is made by the defendant that the pleading ought spell out that category of duty pursuant to which the plaintiff claims. I do not accept that submission. In Bullen and Leake and Jacob's Precedents of Pleadings, 12th edition at p 686, the learned editors say this:

An express allegation of duty on the part of the defendant is a mere inference of law. If the facts stated do not raise the duty the express allegation will not supply the defect; and if the facts sufficiently show the duty, the express allegation is unnecessary and therefore ought not be introduced.

6. In Williams v Milotin (1957) 97 CLR 465 at 474 the High Court said:

When you speak of cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce.

7. In Williams “Civil Procedure in Victoria” vol 1 at par 13.02.30 the learned author states:

The pleader is not bound to state the legal effect of the facts upon which he relies, he is bound only to state the facts themselves... it is sufficient if the pleader states the material facts and at the trial he is free to present in argument whatever legal consequences are appropriate to the facts as found by the Court.

8. Although as a matter of strict pleading it is unnecessary to specify the particular category of negligence pleaded, the defendant was concerned in the instant case that because of the wide ranging nature of the particulars of negligence alleged subsequent to the recitation of the material facts to which I have referred, they may be met with an allegation of some different category of duty. As a matter of fairness that ought not occur. Mr Rush of Queens Counsel who appears for the plaintiff has undertaken to the defendant that the only category of duty which will be alleged at the trial is that of Donoghue v Stevenson.

9. Unfortunately the pleading did not plead one fact material to a Donoghue v Stevenson action, that is, that the defect was hidden and unknown to the plaintiff. Mr Rush recognises that such an averment is necessary and proposes to address that defect.

10. I turn to the further complaints by the defendant that particulars of negligence are embarrassing and of little assistance in knowing what case they are to meet at trial. Mr Rush has now prepared amendments to the particulars of negligence and in discussion between himself and the Bar Table I have given reasons as to why the particulars contained within subparagraph 8(c) (e), (k) and (l) should be disallowed. I am of the opinion that the remaining particulars sufficiently describe to the defendant the scope of the duty alleged and the material breaches of duty relevant to that scope.

11. The only remaining matter concerns the failure of the statement of claim to aver facts sufficient to enliven the jurisdiction of the Tribunal. The Tribunal has jurisdiction, pursuant to s 11 of the Dust Diseases Tribunal Act 1989, only in respect of claims for damages for persons suffering from “a dust related condition”. S 3 of the Act defines a dust related condition as being either a disease mentioned in the schedule, here irrelevant, or “any other pathological condition of the lungs, pleura or peritoneum that is attributable to dust.” As I understand the plaintiff he wishes to invoke the jurisdiction on three possible bases; first, that the diseases suffered by the plaintiff were solely attributable to dust emanating from the defendant’s products; secondly, that the diseases were attributable to dust from the defendant’s products in combination with dust from asbestos products to which the plaintiff was otherwise exposed; or thirdly, that his diseases, while attributable to dust emanating from asbestos products, were also caused, accelerated, exacerbated or aggravated by noxious gases or vapours thrown off by the defendant’s products operating upon a contingent pathology.

12. Mr Rush has not yet drawn the relevant pleading in terms which satisfy objections by Mr Rushton who appears for the defendant and it is not a function of the Court to settle those pleadings, however, the upshot of the matter is that the present statement of claim has two material defects, one being a failure to allege ignorance on the part of the plaintiff of the relevant dangers, and the other a failure to allege facts enlivening the jurisdiction of the Tribunal. Further defects which bear upon possible procedural fairness to the defendant have been identified and these have been addressed.

13. I decline to strike out the statement of claim and I give leave to the plaintiff to file an amended statement of claim within seven days.

14. So far as costs are concerned Mr Rushton lost upon his principal point that the plaintiff did not plead a particular duty, but the statement of claim was nevertheless defective. The letter from the defendant's solicitors to the plaintiff's solicitors pursuant to which this matter was brought to a head asserted that the statement of claim contained:

Pleading defects such that it was impossible for our client to understand the nature of the allegations being reasons, theories and predictions rather than material facts and is poorly or not particularised and generally embarrassing.

15. I regard that statement as tendentious. The substance of the primary complaint which led to today's close analysis of the pleadings was the contention by the defendant that a specific duty said to be owed to the plaintiff must be identified by category. That is such a fundamental misstatement of the law by the author of that letter that I think it colours the merits. In this matter there have been wins and losses on each side. The appropriate order is that the costs be the costs of the cause.

Mr J Rush QC with Mr A L McSpedden instructed by Turner Freeman appeared for the plaintiff

Mr S J Rushton SC with Mr P R Whitford instructed by Corrs Chambers Westgarth appeared for the defendant