Dust Diseases Tribunal New South Wales Medium Neutral Citation: Harper v Sydney Local Health District (No. 2) [2020] NSWDDT 11 Hearing dates: 3 December 2020 Date of orders: 8 December 2020 Decision date: 08 December 2020 Before: Russell SC DCJ Decision: (1) Order pursuant to r 4 of the Dust Diseases Tribunal Rules 2019 that the defendant provide verified discovery by 31 December 2020 of the documents in the categories identified in annexure "A" to the plaintiff's Notice of Motion filed on 3 December 2020. (2) Order the defendant to pay the plaintiff's costs of the Motion. Catchwords: PROCEDURE — DUST DISEASES — discovery — facts in issue — whether discovery should be confined to documents relating to period of alleged asbestos exposure — whether documents created outside exposure period would have probative value or be relevant to a key fact in issue — discovery necessary to ensure that outstanding issues in dispute are properly tried Legislation Cited: Dust Diseases Tribunal Rules 2019, rr 4, 5, 6 Uniform Civil Procedure Rules 2005 (NSW), r 21.8 Cases Cited: Hunter New England Local Health District v Munters Pty Ltd [2018] NSWSC 788 Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250 Category: Procedural and other rulings Parties: Warwick Raymond Harper (Plaintiff) Sydney Local Health District (Defendant) Representation: Counsel: S Tzouganatos (Plaintiff) J Sharpe (Defendant) Solicitors: Turner Freeman (Plaintiff) Thomson Cooper Lawyers Pty Ltd (Defendant) File Number(s): DDT 2020/176944 Judgment Introduction 1. On 19 November 2020 I made an order removing this matter from the Claims Resolution Process. On 20 November 2020 counsel for the plaintiff indicated that he wished to seek formal discovery from the defendant. 2. The parties attempted to deal with the issue of discovery of documents without the need for further court proceedings. While some agreements were reached, other categories of documents remain in dispute. 3. The parties appeared before me again on 3 December 2020. I granted leave to the plaintiff to file in court a Motion seeking discovery of documents in five categories. Background 1. The plaintiff is a medical practitioner who was employed by the defendant between 1972 and 1974 as a surgical registrar at the Royal Prince Alfred Hospital. In performing his work the plaintiff walked through tunnels under Missenden Road in Camperdown when travelling between the western and eastern sides of the hospital. 2. The plaintiff now suffers from malignant pleural mesothelioma and malignant peritoneal mesothelioma. 3. By a Statement of Claim filed on 14 January 2020 the plaintiff alleges that when walking through the tunnels under Missenden Road he was exposed to and inhaled asbestos dust and fibre from lagging that was used as insulation on steam pipework located within the tunnels. 4. The defendant filed a Defence on 1 December 2020. The defendant does not admit that the plaintiff was exposed to asbestos as alleged. 5. The defendant does not admit that it breached a duty of care owed to the plaintiff as an employee and says the following: 1. Any risk of harm to the plaintiff from dust in the tunnel was so low that a reasonable person in the position of Royal Prince Alfred Hospital in about 1972-1974 was entitled to disregard any such risk as posing any threat to the health and wellbeing and safety of the plaintiff. 2. Any organisation for which the defendant might be liable responded to any risk to the health, wellbeing and safety of the plaintiff from dust in the tunnel by acting as would a reasonable person in the then circumstances of Royal Prince Alfred Hospital. 3. Any organisation for which the defendant may be liable maintained a staff of maintenance men and women whose task it was to, and who did, attend to repairs and maintenance of structures and fittings in the tunnels as required. 1. The defendant denies causation, if there was any asbestos exposure in the tunnels. If the plaintiff's only exposure to asbestos dust and fibre was when he walked through the tunnels underneath Missenden Road, then that exposure was very light compared to cases usually heard in the Tribunal brought by workers such as laggers, boilermakers or fitters. The defendant says that this is a "low dose" or "de minimis" case. 2. It is plain from the Defence that liability is very much in dispute. Categories of Documents for Discovery 1. By the Motion filed in court on 3 December 2020 the plaintiff seeks an order pursuant to r 4 of the Dust Diseases Tribunal Rules 2019 that the defendant provide verified discovery of five categories of documents set out in annexure "A" to the Motion. 2. The proposed categories of documents for discovery are: "(i) The plaintiff's employment and personnel records; (ii) Documents (including plans, architectural drawings, engineering diagrams and specifications, photographs, memoranda, inspection reports, building reports, contracts, invoices for the purchase, supply and installation of the insulation materials, maintenance records, correspondence and forms) concerning the presence of asbestos in the tunnels underneath Missenden Road, Camperdown between the Royal Prince Alfred Hospital, Page Chest Clinic and King George V Hospital ("the tunnels"); (iii) Results of atmospheric testing of the air in the tunnels at any time while asbestos insulation materials remained present in the tunnels; (iv) Asbestos Survey(s) or any document describing the presence of asbestos or asbestos containing materials and/or the removal of asbestos or asbestos containing materials in and from the tunnels; (v) Documents (including letters of demand, Statements of Claim, witness statements, affidavits, Form 1 Statements of Particulars, investigators' reports, lists of discovered documents) concerning claims for damages for asbestos related disease brought against the defendant where the allegations included an allegation of exposure to asbestos dust in the tunnels for all periods prior to 31 December 1990." Power to Order Discovery 1. Rule 4 of the Dust Diseases Tribunal Rules 2019 ("DDT Rules") adopts Part 21 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") as the source of the Tribunal's power to order discovery, subject to certain modifications set out within rr 4, 5 and 6 of the DDT Rules. 2. Rule 21.8 of the UCPR is modified by r 4(4) of the DDT Rules, so that it reads: "In any proceedings on a common law claim: (a) for damages arising out of the death of, or bodily injury to, any person, or (b) for contribution in respect of damages so arising, an order for discovery may not be made in relation to any document unless the order is necessary to ensure that the outstanding issues in dispute are properly tried." 1. There is no need to find "special reasons" to order discovery in a personal injury claim in the Dust Diseases Tribunal. That requirement, which is part of r 21.8 in the UCPR, has been removed by r 4(4) of the Dust Diseases Tribunal Rules 2019. 2. In written submissions counsel for the plaintiff drew attention to the summary of the applicable legal principles given by Justice Bellew in Hunter New England Local Health District v Munters Pty Ltd [2018] NSWSC 788 at [19]. The principles are: "(i) discovery cannot be ordered other than in respect of documents that are relevant to a fact in issue. It is therefore necessary to demonstrate a connection between the class of documents of which discovery is sought, and a fact or facts in issue. Where a class is specified in some manner other than by relevance to a fact in issue, it must be apparent that the class so described will capture only documents that are so relevant: Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [22]; (ii) the facts in issue will be primarily identified by an examination of the pleadings: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178; Mulley v Manifold (1959) 103 CLR 341; [1959] HCA 23; (iii) for the purposes of discovery, a document need not be admissible, and need not be directly probative of the existence of the fact in issue, to be relevant. It follows that in a general sense, the test for discovery under the rule is relatively wide: Hutchinson v Glover (1875) 1 QBD 138; (iv) the relevance of a document to a fact in issue is to be determined by its capacity to rationally affect the assessment of the probability of the existence of the contentious fact: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 52 LJQB 181; (v) discovery will be ordered only where it is reasonably required for the fair disposition of the proceedings, and where its legitimate purposes include to obtain evidence and to avoid surprise: In the matter of Felan's Fisheries Pty Ltd [2017] NSWSC 1262; (vi) discovery involves an 'inroad', in the interests of justice, upon the right of the individual to keep his own documents to himself: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, citing Harman v Home Department State Secretary [1983] 1 AC 280; [1982] 2 WLR 338; (vii) the discretion conferred by r 21.2 must be exercised having regard to the provisions of ss 56-60 of the Civil Procedure Act 2005 (NSW). In this regard, case management principles become relevant, although they are not necessarily determinative: Expense Reduction Analysts Group Pty Ltd (supra); (vii) although proper compliance with a party's obligations of discovery is an important and necessary part of modern litigation, the court necessarily has the capacity under the rules to limit discovery, or control the process of giving discovery, so that it does not become unduly onerous: Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200; (ix) there is no entitlement to 'chain of enquiry' discovery. If the process of discovery is abusive, or compliance with an order too onerous, the court can (and should) control it: Palavi v Radio 2UE Sydney Pty Limited [2011] NSWCA 264." Category (i) Documents 1. The defendant consents to an order for discovery of documents in Category (i) and has already provided some documents in this category. Category (ii), (iii) and (iv) Documents 1. Counsel for the defendant submitted that these categories should be confined to documents relating to the years of exposure alleged by the plaintiff, being 1972 to 1974. 2. It would not be logical to exclude documents created before 1972 (if any still exist) from discovery. On the plaintiff's case there was asbestos in the tunnels before 1972. When was it put there? How much was installed? Was it ever disturbed? Those matters would be probative in relation to a key fact in issue – the alleged exposure to asbestos in the tunnels during the plaintiff's years of employment. 3. How much (if anything) did the employer know about any dangers posed by asbestos in the tunnels, and when was such knowledge acquired? After all, the defendant specifically pleads that the risk was so low that a reasonable employer was entitled to disregard the risk, even by 1972. 4. Many such issues need to be the subject of evidence, to ensure that the outstanding issues in dispute are properly tried. All documents which pre-date 1972, and which are covered by Categories (ii), (iii) and (iv) should be discovered. 5. I am also of the view that documents between 1974 and 31 December 1991 should be discovered. Such documents might throw light upon whether there was asbestos in the tunnels back in 1974, what state it was then in, what work was done upon it, and whether the lagging (if there was any) was known to be shedding dust and fibre. Post-1974 documents in these three categories should be discovered to ensure that the outstanding issues in dispute are properly tried. 6. Documents in these three categories are relevant to the facts in issue, as discerned from the pleadings. Such documents (if they exist) could rationally affect the assessment of contentious facts. Further, one of the purposes of discovery is to avoid surprise. 7. I propose to order discovery of documents in Categories (ii), (iii) and (iv) in the terms put forward by the plaintiff. Category (v) Documents 1. Counsel for the defendant submitted that Category (v) documents should be confined to claims brought by persons exposed in the tunnels between 1972 and 1974. As counsel pointed out, there was asbestos "all over the hospital", and other claims could relate to different parts of the hospital and have nothing to do with exposure in the tunnels. 2. Counsel for the defendant submitted that it would be unduly onerous and oppressive to require the defendant to go through all of the documents in Category (v) without limiting the discovery to a claim which arose from the same years as those during which the plaintiff was employed by the defendant. As counsel for the plaintiff correctly pointed out, there was no evidence filed for the defendant to indicate how many claims would have to be examined, or whether such an exercise would be unduly demanding and costly. In cases such as the present, evidence is often given by a person who has knowledge of the quantity of documents, to demonstrate that the exercise of discovering documents in a certain category is onerous and oppressive. 3. If Category (v) is to be confined to claims limited to persons exposed only in the tunnels and only between 1972 and 1974, there would need to be an examination of each and every claim received by the defendant, at least relating to exposure after 1972. Unless there is some centralised database or spreadsheet kept by the defendant which summarises each and every claim, someone would have to sit down and go through each file to sort out which fell into the limited discovery proposed by counsel for the defendant. There is no evidence that there is any such database or spreadsheet. It would be quicker for the defendant, and less costly, to give discovery of all claim files, rather than have the defendant read and triage each file. 4. Counsel for the plaintiff submitted that in a case where the defendant says firstly that there was no causative exposure in the tunnels, and secondly that the response of a reasonable employer would have been in any event to do nothing, the plaintiff is entitled to know whether there have been other cases brought by employees which have similarities with the claim put forward by the present plaintiff. There is much force in that submission. 5. In the decision of the Court of Appeal in Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250, the court specifically dealt with the issue to be determined in a case involving a breach of the common law duty of care owed by an employer to an employee. Justice Hoeben said at [78] that one of the questions to be answered is: what was the magnitude of the risk and the degree of probability of its occurrence? If there are any documents bearing upon claims made by persons exposed in the tunnels, then the claims themselves, and the material served in support of them, would go to both the magnitude of the risk and the degree of probability of its occurrence. 6. In that same case at [79] Justice Hoeben said that the matter had to be approached prospectively and not in hindsight. This principle provides some support for limiting the discovery of documents in Category (v) to those relating only to exposure in the tunnels between 1972 and 1974. However, it could be that claims made for exposure in the tunnels in later years could contain material relevant to facts in issue in the present case. For example, if there were a case where an employee was exposed in 1975 to asbestos in the tunnels, and there were documents in that case to suggest not only that asbestos was present, but that it was in a poor state, and had been for some time, then that material would relevant to facts in issue in the present case. 7. The same could be said of any documents concerning the knowledge of the defendant in 1975 about the risk and the magnitude of the risk. One type of document sought in Category (v) is witness statements. In the theoretical example of a claim arising from a 1975 exposure, there may be written statements relating to the state of the tunnels between 1972 and 1974. The plaintiff himself or herself, in the theoretical 1975 example, may have nothing to say on the topic. But, for example, a maintenance worker who had been engaged in work in the tunnels prior to 1975 could have given information relevant not only to the 1975 claim, but also to the claim of the plaintiff in the present case. 8. I find that discovery of documents in Category (v), in the terms put forward by the plaintiff, should be ordered. My reasons are: 1. Such documents may be relevant to facts in issue in the present proceedings. 2. Such documents do not need to be admissible, and do not need to be directly probative of the existence of the facts in issue, but may be relevant to it in a general sense. 3. The documents may have the capacity to rationally affect the assessment of the probability of the existence of the facts which are contentious in the present case. 4. Discovery is reasonably required for the fair disposition of the proceedings, to obtain evidence and to avoid surprise. 5. Discovery is necessary to ensure that the outstanding issues in dispute are properly tried. 1. For the reasons given above I will make orders in accordance with pars 1 and 3 of the plaintiff's Notice of Motion filed on 3 December 2020. Orders 1. The orders are: 1. Order pursuant to r 4 of the Dust Diseases Tribunal Rules 2019 that the defendant provide verified discovery by 31 December 2020 of the documents in the categories identified in annexure "A" to the plaintiff's Notice of Motion filed on 3 December 2020. 2. Order the defendant to pay the plaintiff's costs of the Motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2020