Walmsley v Alcoa of Australia Limited
[2005] WADC 250
•16 DECEMBER 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: WALMSLEY -v- ALCOA OF AUSTRALIA LIMITED [2005] WADC 250
CORAM: REGISTRAR KINGSLEY
HEARD: 1 NOVEMBER 2005
DELIVERED : 16 DECEMBER 2005
FILE NO/S: CIV 2225 of 2002
BETWEEN: ERIC CHARLES WALMSLEY
Plaintiff
AND
ALCOA OF AUSTRALIA LIMITED (ACN 004 879 298)
Defendant
Catchwords:
Practice - Application to strike statement of claim - Failure to properly plead claim in negligence - Application for particulars of claim
Legislation:
Rules of the Supreme Court 1971, O 20, r 13(6)
Result:
Application to strike statement of claim dismissed
Application for particulars of claim allowed in part
Representation:
Counsel:
Plaintiff: Mr G Droppert
Defendant: Mr P A Tottle
Solicitors:
Plaintiff: Slater & Gordon
Defendant: Tottle Partners
Case(s) referred to in judgment(s):
Brodie v Singleton Shire Council (2001) 206 CLR 512
Chandler v Water Corporation [2001] WASC 166
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Pyrenees Shire Council v Day (1998) 192 CLR 330
Town of Mosman Park v Tait [2005] WASCA 124
Case(s) also cited:
Bruce v Odhams Press Ltd [1936] 1 KB 697
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Charlie Carter Pty Ltd v SDAEA (Western Australia) (1987) 13 FCR 413
Dare v Pulham (1892) 148 CLR 658
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Perre v Apand Pty Ltd (1999) 198 CLR 180
Preston v Star City Pty Ltd [1999] NSWSC 1273
Rubenstein v Truth & Sportsman Ltd [1960] VR 473
Shire of Brookton v Water Corp [2003] WASCA 240
Sullivan v Moody (2001) 207 CLR 562
Tame v State of New South Wales (2002) 211 CLR 317
Wyong Shire Council v Shirt (1980) 146 CLR 40
REGISTRAR KINGSLEY: By an amended chamber summons dated 27 October 2005, the defendant seeks to strike out pars 3, 4, 5, 6, 7 and 8 of the plaintiff's amended statement of claim on the basis the paragraphs disclose no reasonable cause of action, or would prejudice, embarrass or otherwise delay fair trial of the action. The chamber summons goes on to seek orders in relation to further and better particulars of certain paragraphs of the statement of claim.
The plaintiff pleads that, at all material times, the defendant operated an Alumina Refinery located at Wagerup. At all material times the plaintiff resided in close proximity to the refinery, and whilst residing there, was exposed to emissions. The emissions are specified in par 4(a) and 4(b) of the statement of claim.
The plaintiff then pleads that, at all material times, the defendant knew or ought to have known, the emissions could produce one or more symptoms (described as the foreseeable symptoms) and/or injuries (described as the foreseeable injuries). As a result of these matters, the plaintiff pleads he has suffered symptoms and/or sustained injuries and these symptoms and/or injuries were caused by the negligence of the defendant, its servants or agents.
Leave
Leave is required to bring this application (O 20 r 13(6) and r 19 Rules of the Supreme Court). The amended statement of claim was served in March 2005 and in May 2005 a new firm of solicitors came on the record. Between June and September there were email exchanges and letters in relation to the pleadings and other matters. Regarding the application for particulars, and the application to strike out, any delay has not been the result of complete inactivity. There is no prejudice in terms of change of position of the parties nor any increase in costs.
Accordingly, I give leave to bring the applications.
The strike out application
The plaintiff's pleaded case is that the defendant caused the plaintiff to suffer from multiple chemical sensitivity syndrome. The defendant's counsel submits that the novelty of this claim, counsel's research being that there are no decisions in this jurisdiction or in Australia in which liability has been found to attach to a defendant for causing such an injury, reinforces the need for pleadings to define the issues clearly. The defendant raises two issues. Firstly, a specific complaint that the particulars of knowledge given under par 5 do not support the plea in that paragraph and secondly, the plea of negligence is deficient when considered in its overall context.
Paragraph 5 of the statement of claim pleads that at all material times the defendant knew or ought to have known the emissions could produce the foreseeable symptoms or the foreseeable injuries. Material times has been specifically defined by the plaintiff. The defendant's counsel submits that none of the facts pleaded in sub pars (a) – (g) under the heading Particulars in par 5 are capable of sustaining the plea that the defendant knew or ought to have known that the emissions could produce the foreseeable symptoms or foreseeable injuries, at the material times.
The particulars in the statement of claim identified by the defendant's counsel relate to the fact the defendant had operated liquor burners, calciners, residue drying areas and oxalate kilns at refineries other than Wagerup and knew that they would produce emissions. Further, the defendant engaged the services of a medical practitioner, as Chief Medical Officer, who advised the defendant on matters relating to the health or medical consequences of exposure to emissions. The particulars then go on to say that shortly after commissioning of the liquor burning unit and/or the fourth calciner the defendant started receiving complaints and thus began a system of monitoring residents' exposure, installation of industrial air filters to airconditioning systems and the defendant making changes to the refinery.
In relation to the particular of knowledge, I am of the opinion that defendant's counsel's objection has no substance. In each of the particulars the plaintiff has made a statement of fact as to why the defendant had knowledge or ought to have known. How the plaintiff seeks to demonstrate that fact is of course a matter of evidence. There is no embarrassment to the defendant about what the factual allegation against it is.
The plea of negligence
At par 5 of the statement of claim the plaintiff pleads particulars of the foreseeable symptoms and foreseeable injuries, and particulars of knowledge. The plaintiff then pleads at par 6 the particular symptoms suffered by him, and from all of this, pleads at par 7 that the defendant or its servants or agents was negligent. Particulars of the defendant's negligence is given. Defendant's counsel submits that the plaintiff has not sufficiently pleaded a cause of action in negligence.
The defendant's counsel submits the plaintiff has not attempted to plead a duty of care. The plea in par 7 that the loss was caused by the defendant's negligence, in the defendant's submission, obscures the true nature of the relevant inquiry; that is, whether there is a duty owed by the defendant to the plaintiff and whether that duty was breached. The defendant's counsel submits that the particulars in par 7 attempt to define the existence of a duty of care by reference to the alleged breach. The defendant's counsel submits that this retrospective formulation of a duty of care has been criticised in Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 and Town of Mosman Park v Tait [2005] WASCA 124.
The pleading put up by the plaintiff suggests that by reason of the foreseeability of the symptoms and injuries that these injuries could only occur from a want of care on the part of the defendant. However, the fact that such injuries may well be foreseeable, in the sense of being real and not a far fetched possibility, does not mean that the defendant is subject to a legal liability to compensate. A defendant will only be liable where the law imposes a duty to take care.
In Town of Mosman Park v Tait (Supra) Wheeler JA commented at par 13 that the reasoning of Gaudron, McHugh and Gummow JJ in Brodie v Singleton Shire Council (2001) 206 CLR 512 was helpful. In considering the ordinary test of negligence, in the context of its application to a public authority, their Honours said at [150 – 151]:
"Where the state of a roadway, whether from design, construction, works or non repair poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to assess the risk."
At [165] their Honours go on to say:
"Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, of which the authority has been informed or made aware, and, if they are found, fails to take reasonable steps to correct them."
In Chandler v Water Corporation [2001] WASC 166 Hasluck J noted at [22] citing Pyrenees Shire Council v Day (1998) 192 CLR 330 that in order to succeed in a claim for negligence three crucial questions must be asked;
(a) was it reasonably foreseeable that the act or omission would cause harm,
(b)was the relationship between the parties so close or "proximate" that a duty arises, and
(c)whether it was just and reasonable that the law should impose a duty of care – though this question has now been abandoned in the High Court, see Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540.
In my opinion the plaintiff has pleaded sufficiently the necessary allegations or a plea in negligence. The plaintiff has pleaded the "proximate" relationship of the parties and the reasonable foreseeability of the acts and omissions of the defendant leading to the injury. The plaintiffs particularises how the defendant knew, or ought to have known, of the consequences of the alleged acts and omissions.
Accordingly, I am of the opinion the pleading is proper and discloses a reasonable cause and the defendant ought not be embarrassed by it.
Particulars of claim
As an alternative to the striking of the amended statement of claim the defendant seeks certain further and better particulars.
The defendant seeks the time frame embraced by the phrase "at all material times" in pars 2, 3, 4 and 5 of the statement of claim be defined. In the context of this case it is important, in my opinion, that vague and ill‑defined terms be reduced. As the foreseeable symptoms and foreseeable injuries may not have arisen suddenly but over a course of time, it is important that the time lines be established. In my opinion the time frames embraced by the phrase "at all material times", is to be stated.
The defendant seeks the advice of the Chief Medical Officer, Dr Mark Cullen. However, in my opinion this goes to evidence only. The plaintiff has pleaded the fact of the advice and as I have stated previously the manner of proof of that advice goes to evidence. I would not order further particulars of that matter.
The defendant has issued a request for particulars dated 20 April 2005. The defendant seeks that the plaintiff answer that request. However, having carefully considered the nature of the request I am not prepared to order that the plaintiff give those particulars without hearing some argument on the request. Accordingly, that aspect of the amended chamber summons, together with the issue of consolidation stands adjourned.
I will hear counsel on the form of orders and costs.
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