Smith v BHP Billiton - [2011] SADC 143

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
SMITH & ORS v BHP BILLITON
[2011] SADC 143
Judgment of His Honour Judge Jennings
9 September 2011
PROCEDURE
The defendant sought further and better particulars of the plaintiffs' statement of claim - operation and scope of the Rules relating to pleadings discussed - to secure an order for further and better particulars the defendant needed to establish significant prejudice.
HELD: Significant prejudice not established - application dismissed.

SMITH & ORS v BHP BILLITON
[2011] SADC 143

This is an application made by the defendant seeking a direction that in each case the plaintiff provides further particulars pursuant to Rule 6R102 of the District Court Rules 2006.
In each action that is the subject of this application the plaintiff seeks damages for personal injury as a result of alleged exposure to asbestos arising from the employment with the defendant whilst the plaintiffs were working in and about ships at Whyalla in connection with the defendant’s business.
Mr Parker SC, counsel for the defendant, said that the purpose of the application was:
“Designed to obtain further specification of the particularisation of the claims which are made against BHP in these Whyalla ship building exposure cases.”
Because of similarity between the three cases counsels’ submissions were limited to the matter of Smith.
In the case of Smith the defendant had on two previous occasions sought further and better particulars. On both occasions the plaintiff responded and these have now been incorporated into the plaintiff’s third statement of claim, which contains relatively extensive pleadings.
Smith contends that he was exposed to asbestos in the course of his employment with BHP in the periods from 1944 to 1953 and from 1959 to 1977. He alleges that he suffers from benign asbestos pleural diseases and asbestosis.
Mr McIntyre SC, counsel for the plaintiff, contends that the third statement of claim is completely adequate. He submitted that the plaintiff’s claim is based on an assertion that the defendant negligently, in breach of its statutory duty, and in breach of the contact of employment, exposed the plaintiff to asbestos dust and fibre. He contends that the plaintiff’s case is that there existed no safe level of exposure to asbestos, that all exposures were potentially dangerous and that the defendant, as the plaintiff’s employer, should have taken all measures reasonably open to it to reduce or minimise that risk and it is that case that the defendant will have to meet.
In contending that the particulars are inadequate the defendant complains that the general allegation that the plaintiff was exposed to asbestos in connection with the construction of vessels at slipways and the fitting out of the vessels at the wharf at the defendant’s premises at Whyalla is inadequate. It says that without specificity of the nature of the vessel it is not to know whether the particular vessel contained asbestos and if it did, how much of asbestos was present. It says that without specificity it is not to know how long the plaintiff was exposed to asbestos that is, once a day, once a week, once a month or once a year. It says that without that specificity the defendant is prejudiced.
It said that ultimately this court, at trial, was going to be asked to make findings as to how often the plaintiff was on ships, how dusty the conditions were when he was there, and whether there were other sources of exposure. It contended that through particulars the plaintiff was obliged to identify the findings that the Court, in due course, was going to be invited to make. It contended that the plaintiff’s pleadings assert that between 1944 and 1953 and between 1959 and 1977 he was exposed to asbestos. It contended that the plaintiff was obliged to plead in a way that made it abundantly clear whether he was contending exposure for all of those periods or part only and if so what parts of those periods were relevant in terms of the cause of his alleged personal injury.
I was taken to the decision of Judge Lovell in Parker v BHP Billiton Ltd[1]. In that case Judge Lovell rejected a submission that he should find that as at 1972 BHP had actual knowledge of the dangers of exposure to asbestos. The defendant accordingly asked whether in light of that finding the plaintiff was now pursuing an assertion of actual knowledge for the period up to 1972, in connection with the plaintiff’s assertion that he ought to be entitled to exemplary damages.
[1] [2011] SADC 104
The plaintiff in his pleadings identifies a number of publications that concern the issue of asbestos that it was said, Judge Lovell in the Parker case implicitly found irrelevant.
The defendant contended that the plaintiff should be directed to reconsider what materials he intends to rely upon in connection with the allegation of so called “constructive knowledge” in light of that judgment.
The defendant contended that the plaintiff was obliged to identify with some specificity reasonable measures that the defendant ought to have taken. In particular, it was contended that if there are products such as non asbestos blankets, the defendant needed to know when that product was available because, if, for example, it was not available in 1944, it could not be relevant to the issue of liability in so far as exposure in 1944 was to be relied upon. Next, it said, that if there was exposure at a time when reasonable measures that the defendant ought to have taken were not available that exposure was not compensable and moreover that exposure might reduce the damages that the plaintiff might otherwise be entitled to.
The defendant also made a general complaint about the use, in the pleadings of the word “including” because, it asserted, that it left the pleading open ended.
It is convenient to deal with the last point first. So far as I can tell, the reference to the word “including”, as contained in the pleading, is in paragraph 3(d)(ii) which makes allegations about exposure to asbestos and at one point says
“the plaintiff is exposed to asbestos dust and fibre, including blue (crocidolite) asbestos, as a result of working in areas in ships located at the fitting out wharf where limpet asbestos was sprayed inside the ships leaving asbestos dust and fibre in the surrounding air, and when the sprayed asbestos limpet insulation (including overspray) became brittle after drying, giving off dust and fibre when disturbed.”
The word including can mean different things in different contexts. It can mean “one of which” and it can mean “such as”. In pleadings to use it in a way where it means “such as” it can be unfair to the other party because it leaves open other assertions without providing any particularity. That same criticism cannot be made where it is used in the context of “one of which” and that is the context in which it is used here.
I therefore fail to see how the defendant can be prejudiced by the use of the word “including” as it is used in this case.
In determining the application at large, in my view, the observations of Judge Lunn in his judgment in Jones v Nuske and Others[2] are particularly instructive. He said:
“Much of the old law on pleadings and particulars has been superseded by the provisions of Rule 46A. Rule 46A is to be viewed and interpreted in light of the mischief, which it was designed to overcome. Under the former Rules it was notorious that substantial delays and costs were generated in actions by detailed requests for particulars, and arguments about them, when the resulting amended pleadings contributed little, if anything, to the just and expedient resolution of the action. Rule 46A is intended to limit disputes about proper particularity and pleadings to situations where the lack of particularity would significantly prejudice another party.” (emphasis mine)
[2] (2003) 227 LSJS 331
There, in considering the degree of particularity required, His Honour noted that the starting point was to examine the general requirement for pleadings.
That general requirement in relation to pleadings as prescribed by the previous Rule 46A, is now contained in Rule 6R98. It relevantly is the same. It provides:
“(2) A pleading –
(a) must be as brief as the nature of the case allows; and
(b) must state only material facts relied on and not the evidence or arguments by which the facts are to be proved; …” (emphasis mine)
His Honour then went to note, that Rule 46A.02(e) required any legal practitioner who was on the record for the party filing the pleading to give a certificate in the following terms.
“I certify that this pleading is being put forward in accordance with the instructions of the (plaintiff/defendants/third party/etc) and complies with the Rules concerning pleadings.”
Rule 6R98(1)(b) is in similar form. In this case, the third statement of claim contains an endorsement to that affect. Like the situation in Jones v Nuske:
“Unless there is evidence to the contrary the Court is entitled to assume that such certificates are correct.”
His Honour then made reference to Rule 46A(10)(1) which is replicated in Rule 6R103 and which provides:
“A party must not, without the Court’s permission –
(a) introduce at trial of an action evidence of facts that should have been, but were not, alleged in the party’s pleadings; or
(b) raise at the trial of an action issues of which notice should have been, but was not, given in the party’s pleadings.
(2) However –
(a) the Courts permission is not required to introduce evidence, or to raise issues, relevant to credit; and
(b) the Court will not exercise its discretion to exclude relevant evidence, or to prevent relevant issues from being raised, unless satisfied that –
(i) the default was deliberate; or
(ii) the default was in the circumstances so prejudicial or embarrassing to another party that permission should be refused in the interests of the proper administration of justice.
(3) In deciding whether its permission is required under subrule (1) and, if so, how to exercise its discretion to grant or refuse that permission, the Court should–
(a) avoid captious or unduly technical interpretation of pleadings;
(b) have regard to material that was available to the parties apart from the pleadings; and
(c) seek to achieve substantial justice between the parties.” (emphasis mine)
It led His Honour to conclude:
“The intent of the rider to Rule 46A.09(1) and Rule 46A.10 is that it is primarily for the trial Judge to determine the adequacy of particulars in light of the overall case as it is at the time of trial and having regard to the actual evidence sought to be adduced at the trial. It is notoriously difficult at the interlocutory stages of an action to gauge whether a party would be significantly prejudiced, as distinct from merely potentially prejudiced, in the conduct of its case at trial in not having further particulars of an opponent’s pleadings. While in some cases it is doubtless necessary to undertake the exercise as best the Court can at an interlocutory stage, the general intent of Rule 46A is that the adequacy of particulars should be left to be assessed by the trial Judge as he or she will be in the best position to do so, A corollary of this is that a party who has not pleaded with sufficient particularity may suffer substantial consequences at trial as a result of it if it is found that the default would be likely to prejudice or embarrass other parties in the conduct of their cases.” (emphasis mine)
His Honour then went on to make another very pertinent point. He said:
“Another point which needs to be made on this topic is that it is not for the Court on any argument about the adequacy of the pleadings to inquire how a party intends to prove the matters raised by its pleadings at trial unless the party volunteers that information. Whether the evidence is available to a party to prove what it has pleaded is not relevant unless the bona fides of the plea are put in issue. Where a party is acting bona fide it is entitled, if it so wishes, to run its case on weak and generalised evidence, albeit that it runs a substantial risk of having costs ordered against if it cannot prove its case.” (emphasis mine)
In my view, these remarks are entirely apposite to the issues that were debated before me. To succeed in this application, the defendant needs to do more than merely raise the potential for prejudice. It has to show, on the matter as pleaded, that I can, at an interlocutory stage, be satisfied that it is significantly prejudiced.
I am not so satisfied.
If, at the hearing of this action, the plaintiff proposes to introduce evidence that goes beyond the matters as pleaded, it will be a matter for the trial judge as to whether that evidence will be allowed or whether an amendment to the pleadings will be required before it is allowed and if there is prejudice to the defendant in terms of delay or costs, that is the time and place when those issues should be ventilated.
The application for further and better particulars is dismissed.