Salucci v Amaca Pty Ltd

[2009] NSWDDT 33

Dust Diseases Tribunal

of New South Wales

CITATION:	Salucci v Amaca Pty Ltd [2009] NSWDDT 33
PARTIES:	Serafina Salucci (Respondent Plaintiff) Amaca Pty Ltd (Applicant Defendant)
MATTER NUMBER(S):	176 of 2009
JUDGMENT OF:	O'Meally P
CATCHWORDS:	DUST DISEASES TRIBUNAL :- whether issue of causation raised at mediation - mediator's certificate - Defendant's Reply - whether facts reasonably discoverable by defendant before serving Reply
LEGISLATION CITED:	Dust Diseases Tribunal Regulation 2007
CASES CITED:	Stavar v Caltex Refineries (NSW) Pty Ltd (2008) 6 DDCR Eaton v Carrier Air Conditioning Pty Ltd (2004) 1 DDCR 716
DATES OF HEARING:	16 December 2009
DATE OF JUDGMENT:	16 December 2009
EX TEMPORE JUDGMENT DATE:	16 December 2009
LEGAL REPRESENTATIVES:	P C B Semmler QC instructed by Turner Freeman appeared for the Plaintiff G M Watson SC instructed by DLA Phillips Fox appeared for the Defendant

JUDGMENT:

RULING

O'MEALLY P

1. This is a Notice of Motion by Amaca Pty Ltd (Amaca) in proceedings brought against it by Serafina Salucci. For convenience sake I will refer to Amaca, though the applicant on this motion, as the defendant and Mrs Salucci as the plaintiff.

2. The plaintiff claims damages from the defendant alleging that, in the course of home renovations, she was exposed to asbestos which emanated from products manufactured by its predecessor. Her exposure is acknowledged to have been slight. She suffers from malignant mesothelioma. That is not in dispute.

3. Pursuant to the requirements of the Dust Diseases Tribunal Regulation 2007 (the Regulation) the defendant participated in a mediation conducted by Mr J A McIntyre SC. He provided a certificate in which, relevantly, the following appears:

The parties have agreed that the following issues exist: -

a. Whether the plaintiff was exposed to the defendant's product.

b. Damages.

The parties were unable to agree on the issue of causation. The plaintiff asserted that the defendant's reply admitted that any breach of duty had caused the relevant damage. The defendant disputed this, asserting that it had reserved the right to file an amended reply after receipt by it of a report from Dr Gardiner, indicating that, since receipt by it of a report from that doctor, causation was a matter in dispute.

All facts relevant to these issues remain in dispute.

of the Regulation relevantly provides:

(2) The mediator is to certify as to what the parties have agreed as the issues in dispute and the facts relevant to those issues and is to file a certificate with the Registrar and provide a copy of the certificate to each of the parties.

(3) When a claim that is the subject of a mediator’s certificate under this clause is before the Tribunal for determination:

(a) the Tribunal must determine the claim on the basis that the issues agreed to be in dispute are the only issues in dispute between the parties and on the basis of the agreed facts, as certified by the mediator, and
(b) the parties are not permitted to raise any other issue as an issue in dispute between the parties.

5. The Reply of the defendant was filed on 4 November 2009. Question 5.9 in that document asked:

Do you admit that you failed to discharge your common law duty of care to the standard of a reasonable person?
The defendant provided the following answer:
Subject to proof of exposure to asbestos dust and fibre emanating from products manufactured and/or supplied by Amaca, Amaca will admit that it failed to discharge its common law duty of care to the claimant to the standard of a reasonable person.

Amaca reserves its right to file an Amended Reply in this regard.

At 5.10 the question was:
Do you admit your breach of duty of care is a cause of the alleged asbestos injury?

The reply was:

Subject to proof of exposure to asbestos dust and fibre emanating from products manufactured and/or supplied by Amaca, Amaca will admit its breach of duty of care is a cause of the claimant's alleged asbestos-related injury.

Amaca reserves its right to file an Amended Reply in this regard.

At 2.2 the question was:

Do you accept the medical evidence on the claimant's diagnosis that the claimant has provided with his or her Statement of Particulars? If you only accept some of the evidence provided by the claimant, specify those parts which you accept.

The answer given was:

Amaca does not put in issue that the claimant has been diagnosed with mesothelioma however Amaca does not accept the medical evidence regarding the claimant's disability and life expectancy.
Amaca has arranged for the claimant to be medically examined by Dr Ian Gardiner and expects to receive Dr Gardiner's report in November 2009.

Amaca reserves its right to file an Amended Reply in this regard upon receipt of Dr Gardiner's report.

6. The arrangements for Dr Gardiner to examine the plaintiff and report were made on 2 October 2009. The evidence now is that the first date upon which that examination could take place was 3 November 2009. Following his examination Dr Gardiner reported on 3 December 2009, that is shortly before the mediation was conducted by Mr McIntyre SC on 7 December 2009.

7. Dr Gardiner's report contains a survey of some of the literature concerning studies on the relationship between low dose or background exposure to asbestos and mesothelioma. In concluding his report Dr Gardiner said:

I do not believe that Mrs Salucci had any significant exposure to asbestos in the work done by her father in using asbestos cement sheeting in her family home. She recalls seeing fibro cutters, which produce much less dust than saws and particularly angle grinders or electric saws in the cutting of fibro sheeting. It is possible that she has been exposed to asbestos in the renovations of her house at Victory Street Asquith. The latency period from 1993 to the present is only just sufficient with most studies, indicating latency of 20 years is common and shorter latency periods are often regarded as suspect.

SUMMARY

I have doubt about her mesothelioma being due to asbestos exposure and her tumour may be spontaneous as discussed above. Her exposure from her husband's home renovation may have exposed her to asbestos fibre but in trivial amounts, probably not enough to cause mesothelioma. There are no plaques, which would confirm significant asbestos exposure.

of the Regulation relevantly provides:

Party changing facts relied on

(1) After serving the party's statement of particulars or reply on a claim, a party to a claim may only change the facts on which the party relies (whether by way of addition, deletion or correction) if the change is due to:

(a) the discovery by the party of facts that were not known to and not reasonably discoverable by the party before serving the party's statement of particulars or reply, or

(b) ...

(c) ...

(2) In determining whether facts were reasonably discoverable by a party, regard is to be had to what would be likely to be discovered by the party in the reasonable pursuit of a party's claim or defence.

9. It is submitted by Mr Semmler QC for the plaintiff that neither cl 7 nor cl 29 authorise the defendant to raise causation as an issue in the proceedings. With all respect to Mr Semmler, I am unable to agree with his submission that the defendant did not raise causation as an issue before the mediator. The mediator's final paragraph: All facts relevant to these issues remain in dispute, read in conjunction with the penultimate paragraph, indicates to me that the issues to be determined at trial were to be exposure to the defendant's product, damages and causation.

10. So far as cl 29 is concerned it should be observed that the defendant acted reasonably in seeking a report from Dr Gardiner at an appropriate stage. It filed its Reply in accordance with the provisions of the Regulation, but reserved the right to amend it depending upon what might subsequently have emerged.

11. I am satisfied that the information provided by Dr Gardiner in his report was not reasonably discoverable before the defendant's Reply was served. I propose, therefore, to allow the defendant to file a defence raising causation and damages as issues. It will be necessary for the plaintiff also, unless it is admitted, to prove exposure to the defendant's product.

12. It may well become necessary for the defendant to make application under s 25B(4) of the Dust Diseases Tribunal Act 1989 to relitigated the issue as recited in Stavar v Caltex Refineries (NSW) Pty Ltd (2008) 6 DDCR at [115]:

It has frequently been held in the Tribunal that all asbestos exposure during an acceptable latency period makes a material contribution to mesothelioma. That has been the subject of determination by judges of the Tribunal under s 25B of the Act.

13. Stavar is but one case in which that issue has been determined. Another is Eaton v Carrier Air Conditioning Pty Ltd (2004) 1 DDCR 716 at [11].

14. No notice under s 25B has been put on by the plaintiff and so it is inappropriate to determine the outcome of this Notice of Motion on the basis of an issue earlier determined.

15. There is no dispute that the plaintiff suffers malignant mesothelioma. Experience confirms that the condition of a plaintiff suffering mesothelioma can and does change with little or no warning and for that reason the Tribunal treats all cases of mesothelioma as urgent. The defendant seeks further time to prepare its case. It should have some time, but I think in the circumstances of this case, until the last week of January is sufficient. I propose, therefore, that the case be listed for hearing commencing on 21 January 2010 and continuing until concluded.

16. In view of the circumstances surrounding the present application I think it appropriate that the plaintiff have her costs of the application and all costs occasioned by the litigation of this issue. I would be obliged if the parties would now draw up some short minutes of order relating to the preparation of the case, specifying in particular dates by which the reports and witness statements are to be served and dealing also with the material that is to be served in reply. In the event that agreement is not reached I will determine what should occur. I am conscious of the fact that we are about to enter what is, for some people, the holiday season, but I think it appropriate that preparation should quickly be concluded and that there be some limitation upon the areas of specialisation and numbers of witnesses that are to be called.

17. I have now been informed, agreement on the steps to be taken cannot be reached. I therefore make the following orders:

Defendant, if so advised, to serve further report of Dr Gardiner on or before 15 January 2010.

Defendant to serve other experts' reports and witness statements on or before 15 January 2010.

Plaintiff to serve reports and witness statements in reply on or before 20 January 2010.

Liberty to apply.

Defendant to file defence limited to the issues of causation, exposure and damages on or before 18 December 2009.

Defendant to pay plaintiff's costs of this application and all costs in relation to the issue of causation in any event.

Mr P C B Semmler QC instructed by Turner Freeman appeared for the Respondent Plaintiff

Mr G M Watson SC instructed by DLA Phillips Fox appeared for the Applicant Defendant