WIATR v CSR Ltd
[2006] WASC 77
•9 MAY 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WIATR -v- CSR LTD & ANOR [2006] WASC 77
CORAM: LE MIERE J
HEARD: 13 APRIL 2006
DELIVERED : 9 MAY 2006
FILE NO/S: CIV 2159 of 2005
BETWEEN: JOSEF TADEUS WIATR
Plaintiff
AND
CSR LTD
First DefendantMIDALCO PTY LTD
Second DefendantTHE STATE OF WESTERN AUSTRALIA
First Third PartyTHE MINISTER FOR WORKS
Second Third PartyTHE COMMISSIONER OF MAIN ROADS
Third Third PartyTHE STATE HOUSING COMMISSION
Fourth Third PartyTHE MINISTER FOR MINES
Fifth Third PartyTHE MINISTER FOR HEALTH
Sixth Third PartySHIRE OF ASHBURTON
Seventh Third Party
Catchwords:
Practice and procedure - Summons to strike out claim for aggravated damages - Whether claim discloses reasonable cause of action - Whether aggravated damages available for negligence - Whether circumstances give rise to aggravated damages - Whether pleading embarrassing
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
Plaintiff: Mr J R C Gordon
First Defendant : Mr G R Donaldson SC
Second Defendant : Mr G R Donaldson SC
First Third Party : No appearance
Second Third Party : No appearance
Third Third Party : No appearance
Fourth Third Party : No appearance
Fifth Third Party : No appearance
Sixth Third Party : No appearance
Seventh Third Party : No appearance
Solicitors:
Plaintiff: Slater & Gordon
First Defendant : Jackson McDonald
Second Defendant : Jackson McDonald
First Third Party : No appearance
Second Third Party : No appearance
Third Third Party : No appearance
Fourth Third Party : No appearance
Fifth Third Party : No appearance
Sixth Third Party : No appearance
Seventh Third Party : No appearance
Case(s) referred to in judgment(s):
AB v South West Water Services Ltd [1993] QB 507
Delta Corporation Ltd v Davies [2002] WASCA 125
Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268
Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Kralj v McGrath [1986] 1 All ER 54
Tan v Benkovic (2000) 51 NSWLR 292
Case(s) also cited:
Archer v Brown [1984] 2 All ER 267
Backwell v AAA [1997] 1 VR 182
Brandon v Commonwealth of Australia [2001] FCA 264
Carson v John Fairfax (1993) 178 CLR 44
Covington-Thomas v Commonwealth of Australia [2004] NSWSC 743
Davies v Delta Corporation Ltd [2001] WADC 190
De Reus v Gray (2003) 9 VR 432
Dey v Victorian Railways Commissioners (1948) 78 CLR 62
Geagea v New South Wales Insurance Ministerial Corporation (formerly the Government Insurance Office of New South Wales) [2004] NSWSC 118
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gray v Motor Accidents Commission (1999) 196 CLR 1
Hehir & Anor v Smith [2002] QSC 092
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Hubbuck & Sons Ltd v Wilkinson Heywood & Clark Ltd [1899] 1 QB 86
Jervois Sulphates (NT) Ltd v Petrocarb Explorations NL (1974) 5 ALR 1
Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122
Lamb v Cotogno (1987) 164 CLR 1
Lonrho PLC v Fayed [1992] 1 AC 448
McKenzie v Lichter [2005] VSC 61
Mundraby v Commonwealth of Australia [2000] FCA 666
Munnings v Australian Government Solicitor (1994) 120 ALR 586
Munnings v Australian Government Solicitor (1994) 118 ALR 385
Myer Stores Ltd v Soo Lin Seng [1991] 2 VR 597
Naidu v Group 4 Securitas Pty Ltd [2006] NSWSC 144
Opat Decorating Service (Vic) Pty Ltd v Jennings Group Ltd, unreported; SCt of Vic; 16 September 1994
Philp v Ryan [2004] IESC 105
Richardson v Howie [2004] EWCA Civ 1127
Rookes v Barnard [1964] AC 1129
Sanders v Snell [2003] FCFCA 150
Schmidt v Argent [2003] QCA 507
Seabrook v Allianz Insurance Ltd [2005] QCA 58
Spautz v Butterworth (1996) 41 NSWLR 1
State of New South Wales v Ibbett [2005] NSWCA 445
State of New South Wales v Riley (2003) 57 NSWLR 496
Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1990) 98 ALR 101
The Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254
Timms v Clift [1998] 2 Qd R 100
Triggell v Pheeney (1951) 82 CLR 497
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Weir v Tomkinson [2001] WASCA 77
LE MIERE J: This is a pleading summons in which the defendants submit that par 23 of the statement of claim discloses no reasonable cause of action. On this application all the facts alleged in the statement of claim, which I will now set out, must be accepted as true and it must be accepted that on all other points the statement of claim is unassailable.
The claim
The plaintiff was born on 20 January 1952. Between then and about May 1953 he resided with his family in Wittenoom where his father, the late Joseph Wiatr, worked as an employee of the defendant companies, or one of them. The second defendant occupied land at Wittenoom at which it operated blue asbestos mining and milling. The first defendant managed and/or operated the blue asbestos milling and mining operations at Wittenoom as the managing agent of the second defendant. Prior to the plaintiff's family moving to Wittenoom, the defendants, or one of them, had established the town of Wittenoom on a lease held by the second defendant under the Mining Act 1904. The defendants, or one of them, were closely involved in the town's maintenance, appearance and operation. From the time of the establishment of the town and during all material times the defendants, or one of them, brought, caused to be brought and provided for the purpose of being brought, waste material which contained asbestos fibre and dust from its blue asbestos mining and milling operations at Wittenoom (the tailings) into the town for the purpose of the tailings being spread in or about the town and used as fill for earthworks and construction works. During the course of his residence at the town the plaintiff was exposed to inhalation of blue asbestos dust and fibre from sources including airborne asbestos dust and fibre emanating from the tailings and from air and wind movement, people and vehicle movement, all of which circulated asbestos dust and fibre emanating from tailings utilised around the town. The plaintiff's exposure also resulted from coming into contact with asbestos dust and fibre brought home by his father.
The plaintiff pleads that the defendants, or one of them, were under a duty to him to take reasonable care not to endanger his health by exposing him to risk of injury or disease from the inhalation of asbestos fibre and dust. The defendants breached that duty, or duties, and as a result the plaintiff was exposed to asbestos and tailings and inhaled asbestos fibres and dust or alternatively was exposed to unnecessary amounts of dust which increased his risk of respiratory injury. By reason of that breach, or breaches of duty the defendants, or one of them, caused or materially contributed to the plaintiff suffering malignant pleural mesothelioma, which injury was a foreseeable risk of the breach or breaches of duty.
The plaintiff's father was employed by the defendants, or one of them, at Wittenoom from in or about 13 November 1952 to on or about 29 July 1955. In the course of his employment the plaintiff's father was exposed to and inhaled dust containing blue asbestos fibres, particles and dust. As a consequence of the plaintiff's father's asbestos exposure, the plaintiff's father contracted severe asbestosis and died on 24 November 1963. The final paragraph of the statement of claim is par 23 which is the subject of this pleading summons. I will set it out in full:
"As the Plaintiff's asbestos exposure was consequential on the Plaintiff's Father's asbestos exposure, caused by the negligence of the First and/or Second Defendants and each of them, and by virtue of the Plaintiff experiencing his father suffer and die as a result of similar asbestos related exposure and subsequent disease, the breach of the duty owed to the Plaintiff has been aggravated and the Plaintiff is entitled to an award of aggravated damages.
PARTICULARS
(a)The First and/or Second Defendants:
(i)Failed to warn the Plaintiff's Father to shower or change to avoid returning home with asbestos‑contamination on his clothes or person, and further and alternatively to provide appropriate facilities to prevent it;
(ii)Failed to warn the Plaintiff's Father not to return home with asbestos in his hair and clothing.
(b)The Plaintiff refers to and repeats paragraphs 11 – 18 above."
Paragraphs 11 – 18 plead the defendant's knowledge of the risk of injury to health and comfort resulting from exposure to asbestos fibre and dust and the inhalation of asbestos, the duty owed by the defendants to the plaintiff, the breach of that duty and the resulting injury to the plaintiff.
The defendants' application
The defendants apply for an order that pars 21 – 23 and the plaintiff's claim for aggravated damages amended pursuant to O 31A r 6 be disallowed pursuant to O 31A r 6(2) and struck out pursuant to O 31A r 6(3). In considering whether or not to strike out a pleading pursuant to O 31A r 6(3) on the ground that it discloses no reasonable cause of action the court shall have regard to the principles to be applied in considering a strike out application under O 20 r 19(1)(a). Those principles include:
1.The rule is intended to apply only to cases which are really not arguable.
2.Great care must be exercised to ensure that the plaintiff is not improperly deprived of his or her opportunity for the trial of his or her case by the appointed tribunal.
3.As a general rule the plaintiff is entitled as of right to have his or her case heard, to have the facts found and then to argue the question of law as it arises before the trial Judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out.
4.A court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie. See Kimberley Downs Pty Ltd v State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986 and Civil Procedure Western Australia [20.19.6].
The application is brought on the alternative ground that par 23 of the amended statement of claim is embarrassing. I will first consider the submission that par 23 of the amended statement of claim discloses no reasonable cause of action.
The issues
Senior counsel for the defendants, Mr Donaldson SC, submitted that three principal issues arise on this application. The first is whether aggravated damages are available for negligence at all. The second is that if aggravated damages are available for negligence, is the asserted aggravating circumstance pleaded, that is the death of the plaintiff's father, a circumstance which can aggravate. The third is if the first two issues are resolved in favour of the plaintiff, does the plea in par 23 comply with the requirement that a plea of aggravated damages specify the consequences of the aggravating circumstances upon the plaintiff.
Are aggravated damages available in a negligence action?
The defendants submit that aggravated damages are not available in a cause of action for negligence.
Mr Donaldson SC, in written and oral submissions, made detailed submissions referring to authorities and texts on the subject of whether aggravated damages are available for negligence.
Kralj v McGrath [1986] 1 All ER 54 was a case of medical negligence that involved treatment at birth described as "horrific" and "wholly unacceptable". Woolf J held that the concept of aggravated damages was not appropriate to claims arising out of medical negligence, since it conflicted with the general principle that damages for loss suffered as the result of the defendant's breach of duty should be compensatory. Nevertheless, the compensatory damages recoverable by a patient could be increased if the impact of what had happened to the patient was such that it would be more difficult for the patient to recover. Woolf LJ held that, on the facts and in the context of childbirth, the court was entitled to take into account the fact that the distress caused to the plaintiff by the child's disabilities and death would have made it more difficult for the plaintiff to overcome the consequences of the obstetrician's treatment and the unnecessary suffering which she had had to undergo than if she had given birth to a normal child.
AB v South West Water Services Ltd [1993] QB 507 arose out of a quantity of aluminium sulphate having accidentally been introduced into the drinking water system at a water treatment works operated by a water authority. The plaintiffs, who were customers of the Authority, brought actions against the defendants alleging, amongst other things, nuisance, negligence and breach of statutory duty and claiming compensation in respect of injuries sustained as a result of drinking contaminated water. The plaintiffs sought exemplary and aggravated damages, in addition to compensatory damages, on the grounds that for some weeks following the date of the contamination the Authority had acted in an arrogant and high‑handed manner by ignoring customers' complaints, had wilfully and deliberately misrepresented the situation in a circular letter asserting that the water was safe to drink and had failed to give out proper information or to take precautionary measures so that the plaintiffs had consumed the contaminated water for a longer period and in greater quantities than they would otherwise have done and their feelings of indignation had been justifiably aroused. The defendants applied to strike out the claims for exemplary and aggravated damages on the ground that such damages did not lie in an action for nuisance, breach of statutory duty or negligence. Wright J found that the only arguable basis for the claims lay in nuisance and dismissed the summons. The defendants appealed to the English Court of Appeal. The Court of Appeal held that while the plaintiffs were entitled to recover the ordinary measure of compensatory damages for all they had suffered as a direct result of the Authority's breach of duty, the feelings of indignation, which were common to many plaintiff litigants could not be characterised as pain and suffering and could not attract an award of aggravated damages; as such the claim for aggravated damages would be struck out. At 533, Sir Thomas Bingham MR stated that in the special circumstances of the case it was appropriate to decide the issue of law on a strike out summons. The Master of the Rolls said:
"Ordinarily, I would prefer to wait until the facts had been investigated. The issues of law might not then arise. If they did, they could be decided on the reality of established facts and not the hypothesis of assumed facts. I am persuaded that here the legal decision should not await investigation of the facts, for three reasons. (1) The defendants having admitted liability, the parties wish to settle but cannot do so while they continue to differ on the appropriate measure of damage. It is desirable that they should be guided on the appropriate measure to facilitate the negotiation of early settlements. (2) Discovery relevant to these issues is likely to be a laborious, costly and time‑consuming process. If the issues do not arise, it is undesirable that the process be embarked upon. (3) The full trial of even one test case (with the attendant appeals) would be costly and would delay resolution of all the other claims. Both cost and delay are better avoided."
Mr Donaldson SC submitted that the New South Wales Court of Appeal has squarely addressed the issue in two decisions: Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268 at [94] – [110] and Tan v Benkovic (2000) 51 NSWLR 292 at [35] – [38].
In Hunter, (supra) the respondents were the parents of a baby (Maria) who was born on 29 September 1992 and who died on 29 October 1992. Maria was born clinically dead suffering brain damage caused by cerebral hypoxia which was caused by asphyxia (lack of oxygen) during the delivery. The defendant health service admitted breach of duty that had caused Maria's brain damage which in turn had led to her death. The hospital also admitted breach of duty of care towards the respondents and that such breach had caused nervous shock sounding in damages. Each respondent had claimed aggravated and exemplary damages. They relied on two matters. The first related to the hospital's alleged but disputed initiation of a coronial inquest with its concomitant autopsy. The second related to the decision made by hospital staff on 16 October 1992 that Maria was "not a candidate for resuscitation" in the event that her condition deteriorated. The trial Judge awarded aggravated damages. On appeal the appellant challenged the award of aggravated damages. Mason P, with whom the other members of the court agreed, stated that it is a question of principle whether aggravated damages are available with respect to the tort of negligence. His Honour reviewed the authorities, including the English cases of Kralj (supra) and AB (supra). His Honour stated that he agreed with these English cases and the reasoning upon which they proceed. His Honour concluded at [110 ‑ 111]:
"The upshot is that I find no clear guidance in Australian case law on the broad question whether aggravated damages are capable of being awarded in a negligence action. In point of principle, I seriously doubt the need to engraft an award of aggravated damages upon a negligence claim. Compensatory damages would normally include damages for mental distress or injured feelings so long as they can be linked to the tort through existing principles of causation and remoteness of damage. To speak of aggravated damages as a separate component can only have the capacity to confuse and run the risk as to double compensation.
…
Fortunately, I can pass to two narrower issues where I perceive the position to be clearer and which are sufficient to dispose of the present controversy."
His Honour went on to hold that the pleaded effect upon the respondents of the appellant's conduct was not capable of giving rise to an award of aggravated damages. Mere grief, distress or normal emotional reaction based on a wrong done to a third party are non‑compensable in a nervous shock claim. If follows, his Honour held, that to allow an award of aggravated damages in a claim for negligently inflicted pure psychiatric injury would put back what the specific law relating to a nervous shock precludes.
In Tan v Benkovic (supra) damages were awarded in a successful action for negligence by a patient against a specialist plastic surgeon. An appeal was brought by the surgeon against the assessment of those damages. Mason P said:
"[37] During the argument of the appeal, counsel's attention was drawn to a line of English cases that hold that aggravated damages are not available at all in cases of pure negligence, see my judgment in Hunter Area Health Services v Marchlewski (2000) 51 NSWLR 268.
[38] The appellant gratefully "adopted" the cases as authority for the proposition that no award of aggravated damages should have been made in this case. It is unnecessary in the present appeal to determine this broader point concerning aggravated damages."
The question of whether aggravated damages are available in a negligence action was also referred to by a Full Court of this Court in Delta Corporation Ltd v Davies [2002] WASCA 125. At [154] Hasluck J, with whom the other members of the Court agreed, referred to the dicta of Mason P in Hunter and said at [155]:
"It emerges from a consideration of the remarks made by Justice Mason in Hunter Area Health Service (supra) that there continues to be a degree of uncertainty as to whether an award of aggravated damages is available in respect of a claim in negligence."
I respectfully agree with the statement of Hasluck J that there continues to be a degree of uncertainty as to whether an award of aggravated damages is available in respect of a claim in negligence. It is inappropriate for a single Judge to attempt to resolve that uncertainty in the course of a strike out application.
There are not special circumstances, as there were in AB, calling for the issue to be resolved summarily rather than at trial. In AB, Sir Thomas Bingham MR said at 532:
"The ordinary measure of compensatory damages will cover all they have suffered as a result of that breach, physically, psychologically and mentally. Full account will be taken of the distress and anxiety which such an event necessarily causes. To the extent that any of these effects was magnified or exacerbated by the defendants' conduct, the ordinary measure of damages will compensate."
Senior counsel for the defendant submitted that was a correct statement of the law. Mr Donaldson SC also accepted that the extent to which the plaintiff's suffering, psychologically and mentally, was exacerbated by the plaintiff having experienced his father's suffering and death from asbestos‑related exposure and the plaintiff's own subsequent disease resulting from the same or similar negligent conduct by the defendants, is a matter to be taken into account in assessing compensatory damages. On that basis, the evidence to be led at the trial will not be significantly greater if the plea of aggravated damages is not struck out than if it is struck out.
The aggravating factors
The second basis of the defendant's application is that if aggravated damages are available for negligence the pleaded aggravated circumstance, that is the death of the plaintiff's father, is not a circumstance capable of giving rise to aggravated damages. In my view the plaintiff's current plea of aggravated damages is defective and will need to be reformulated. However, it is not possible to say that the plaintiff's experience of his father dying from an asbestos‑related disease in the circumstances pleaded is not capable of constituting circumstances giving rise to aggravated damages. The plaintiff's claim for aggravated damages is founded in the defendant's negligent conduct which exposed the plaintiff's father to the inhalation of asbestos fibres and dust and consequently led to the plaintiff's father contracting and dying from asbestosis. Furthermore, the defendant continued its negligent conduct, which ultimately caused or contributed to the plaintiff contracting mesothelioma. The plaintiff submits that his suffering has been exacerbated by his experience of those matters. The plaintiff may argue that the pleaded conduct gives rise to justifiably aroused feelings of indignation.
Paragraph 23 is embarrassing
The defendants alternatively submit that par 23 of the statement of claim should be struck out on the ground that it does not plead the necessary elements to establish an entitlement to aggravated damages and is otherwise embarrassing. In my view that submission is made out. So that the defendants know the case they have to meet the plaintiff must plead the alleged aggravating factors with some reasonable degree of precision. That involves identifying the conduct of the defendants and the effect upon the plaintiff of that conduct ultimately giving rise to the claim for aggravated damages. The present plea fails to do that.
Conclusion
For the stated reasons par 23 of the statement of claim will be struck out with leave to re‑plead.
0
3
1