Dust Diseases Tribunal of New South Wales CITATION : Jackson v Bluescope Steel Ltd & Anor [2007] NSWDDT 8 Margaret Jackson as legal representative of Youden Richard Jackson (Deceased) PARTIES : Bluescope Steel Ltd formerly known as (John Lysaght (Australia) Ltd BHP Billiton Ltd (Formerly The Broken Hill Proprietary Company Ltd MATTER NUMBER(S) : 6166 of 2006 JUDGMENT OF: Kearns J Dust Diseases Tribunal :- whether particulars should be supplied CATCHWORDS: whether part of statement of claim should be struck out. CASES CITED: Ross v WGE Pty Ltd (1998) NSWSC 477 DATES OF HEARING: 03/04/2007 Ruling EX TEMPORE JUDGMENT DATE : 3 April 2007 Mr B Ferrari, instructed by Taylor & Scott, appeared for the plaintiff LEGAL REPRESENTATIVES: Mr T Rowles, instructed by Sparke Helmore, appeared for the first defendant Mr T G R Parker, instructed by Piper Alderman, appeared for the second defendant JUDGMENT: 4 Dust Diseases Tribunal of New South Wales Matter Number DDT6166 of 2006 Margaret Jackson as legal representative of Youden Richard Jackson (Deceased) v Bluescope Steel Ltd formerly known as (John Lysaght (Australia) Ltd BHP Billiton Ltd (Formerly The Broken Hill Proprietary Company Ltd 3 April 2007 RULING KEARNS J 1. Several issues have been agitated before me this morning, the first is whether or not part of the statement of claim should be struck out. The second is whether the second defendant should provide some particulars to the plaintiff. The third is whether the second defendant should file a defence. 2. Mr Parker of Senior Counsel, who appears for the second defendant, has informed me that what has been holding up the filing of a defence is an anticipation that the statement of claim, which has already been amended, is by reason of the death of Mr Jackson, likely to be further amended. It now appears that the statement of claim is not to be further amended, and Mr Parker has indicated that a defence may be filed very quickly. 3. I propose to order that a defence be filed within seven days. 4. As to the matter of particulars Mr Parker has raised a number of issues. The first is, he seeks particulars of the frequency with which the deceased was exposed to asbestos in his visits to the premises of the second defendant. It is common ground that those visits were occasioned between 21 March 1957 and 17 October 1961, between 6 April 1962 and 24 September 1962 and between 25 March 1964 and 30 December 1965. 5. Mr Ferrari has informed me that particulars in relation to that have been given and that the best particulars that the plaintiff is able to give have been given and no further particulars are capable of being given. That request therefore must be recognised as being satisfied. Things can of course change in the course of interlocutory processes in the matter or even in the giving of evidence, but that is where the matter clearly stands at this stage. 6. Mr Parker also seeks that the plaintiff give particulars of the nature of the work that the deceased was undertaking at the premises of the second defendant which gave rise to his exposure to asbestos. 7. Mr Ferrari read to me some detail of particulars that have been given in relation to that and again informs me that the information that has been supplied to the second defendant is the best information that the plaintiff is capable of conveying to the second defendant, and accordingly that request must be recognised as being satisfied. 8. Mr Parker also seeks particulars of any direction or control said to have been given by the second defendant to personnel of the first defendant in relation to the performance of the work that the deceased was to undertake at premises of the second defendant. Mr Ferrari informs me that no allegation to this effect is made and accordingly nothing further needs to be done in relation to that request. 9. Mr Parker also seeks particulars of diseases it is said were foreseeable or ought to have been foreseeable to the second defendant. 10. Mr Ferrari has informed me that particulars have been given, that the second defendant ought to have foreseen as diseases that the plaintiff could suffer asbestosis, lung cancer and mesothelioma. That would seem to satisfy that request. 11. The parties are clearly at issue at the next point, and that is what information should be handed over or given in relation to a request as to the facts, matters and circumstances that the plaintiff relies on for an allegation that the second defendant had constructive knowledge or ought to have known of particular diseases. 12. Mr Parker has indicated in his submission that he is entitled to things such as documents that were in the public arena if the plaintiff relies on them. Mr Ferrari protests that that would he handing over the plaintiff's evidence. 13. I do not agree with the submission of Mr Ferrari in this regard. Before a person can be said to have constructive knowledge of some particular information, the information at least ought to be identified. In any event, even if I am wrong in my view as to the validity of Mr Ferrari's submission, I would propose to make an order that the information be supplied by way of particulars. This is because before this matter comes on for hearing this information is going to be handed over, if not willingly, pursuant to court order and well before the hearing, and it does not seem to me that it is going to make any difference whether the defendant gets it two, four, six or eight weeks before the hearing. I propose to make an order that the plaintiff supply particulars in relation to that item. 14. That brings me back to the first matter I mentioned, and that is that the statement of claim, or part of it, ought to be struck out. Mr Parker indicated at the outset that no allegation of occupation had been made in the statement of claim. It is apparent, however, that there is an allegation to that effect in par 6 of the statement of claim. Par 6 pleads that between 1957 and 1965, the first defendant directed the deceased to work from time to time at premises occupied by the second defendant, premises which were described in that paragraph as the steel works . In par 7 it is then alleged that the deceased was exposed to asbestos dust and fibre at the steel works and in par 8 it is alleged that the steel works was a factory. I was then taken to particulars of negligence and breach of statutory duty of the second defendant and referred to a decision of Ross v WGE Pty Ltd (1998) NSWSC477. In part of that judgment, there was a reference to s 4 of the Factories Shops and Industries Act, in particular the definition of occupier which referred to the person, partnership, association or corporation employing persons in the factory or shop or occupying the factory or shop. Mr Parker's submission was to the effect that whilst the deceased was at the premises of his client he was there employed by the first defendant and as the first defendant was employing him therefore it was the occupier and his client was not. S 4 contains an alternative in the definition of occupier. The first part of the alternative is the person employing persons in the factory or shop, and the second part of the alternative is the person occupying the factory or shop. Which of those applies in any given case must surely be determined at the end of the whole of the evidence in the case, and in my view it is not appropriate to deal with the matter at an interlocutory stage by way of a strike out application and accordingly I reject the application to strike out any part of the statement of claim. 15. I order that the second defendant file a defence within seven days. 16. I order the plaintiff to provide particulars of all facts, matters and circumstances upon which she relies in support of the allegation that the second defendant ought to have known of the risk to the plaintiff of contracting asbestosis, lung cancer or mesothelioma. Those particulars are to be supplied within 14 days. 17. I order that discovery be given by the defendants within four weeks. Inspection is to take place within seven days thereafter. 18. Interrogatories are to be administered within 14 days after inspection. 19. Answers to interrogatories are to be provided within 28 days thereafter. 20. Subpoenas are to be issued by 10 July 2007. 21. Any documentary material on which any party relies is to be served by 31 July 2007. 22. I will list the matter for hearing from 6 to 9 August inclusive 2007. 23. I will add to those orders, liberty to any party to apply. ********** Mr B Ferrari instructed by Taylor & Scott appeared for the plaintiff Mr T Rowles instructed by Sparke Helmore appeared for the first defendant Mr T G Parker instructed by Piper Alderman appeared for the second defendant 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.