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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Smith v BHP Billiton

Details

AGLC: Smith v BHP Billiton [2011] SADC 143
Case: [2011] SADC 143
Decision Date: 9 September 2011

CaseChat Overview and Summary

In the District Court of South Australia, Smith and others brought a claim against BHP Billiton for damages resulting from alleged asbestos exposure during their employment. The defendant sought further and better particulars of the plaintiffs' statement of claim, arguing that the lack of specificity in the plaintiffs' pleadings caused significant prejudice to their ability to conduct a defence. The court had to decide whether the plaintiffs' third statement of claim was adequate or whether the defendant's application for further and better particulars should be granted.

The court examined the pleadings and the rules concerning pleadings, noting that the starting point for determining the adequacy of particulars was the general requirement for pleadings. The court highlighted that the plaintiffs' pleadings must be as brief as possible and must state only material facts relied upon, not the evidence or arguments by which the facts are to be proved. The court also considered the intent of the rules, which was to limit disputes about proper particularity and pleadings to situations where the lack of particularity would significantly prejudice another party.

The court concluded that the defendant had not established significant prejudice at an interlocutory stage. The court emphasised that it was primarily for the trial judge to determine the adequacy of particulars in light of the overall case as it was at the time of trial and having regard to the actual evidence sought to be adduced at the trial. The court further noted that it was not for the court to inquire how a party intended to prove the matters raised by its pleadings at trial unless the party volunteered that information. The court held that the plaintiffs' third statement of claim was adequate and dismissed the defendant's application for further and better particulars.

The court's decision in Smith v BHP Billiton highlights the importance of pleadings that are as brief as possible and state only material facts relied upon. The court also emphasised that it was primarily for the trial judge to determine the adequacy of particulars in light of the overall case as it was at the time of trial and having regard to the actual evidence sought to be adduced at the trial. The court's decision also underscores the principle that it is not for the court to inquire how a party intended to prove the matters raised by its pleadings at trial unless the party volunteered that information.

Orders