Dust Diseases Tribunal of New South Wales CITATION : Buttner v Wallaby Grip Pty Ltd and ORS (ruling) [2005] NSWDDT 49 Reinhold Buttner (Plaintiff) Wallaby Grip Pty Ltd (First Defendant) PARTIES : Wallaby Grip (NSW) Pty Ltd (Second Defendant) PHR Pty Ltd (Third Defendant) Unbehaun and Johnstone Pty Ltd (Fourth Defendant) MATTER NUMBER(S) : 408/04 JUDGMENT OF: O'Meally P at 1 CATCHWORDS: :- Dust Diseases Tribunal Act - S 23(3) - historical evidence admitted in earlier proceedings - irrelevant to issues in present case - tender rejected LEGISLATION CITED: Dust Diseases Tribunal Act 1989 CASES CITED: Strikwerda v BI (Contracting) Pty Ltd and PHR Pty Ltd [2004] NSWDDT 50 DATES OF HEARING: 24 August 2005 EX TEMPORE JUDGMENT DATE : 08/24/2005 G F Little, SC appeared for the Plaintiff LEGAL REPRESENTATIVES: G P F Rundle appeared for the Third and Fourth Defendants JUDGMENT: RULING O'MEALLY P 1. Mr Rundle seeks, pursuant to s 25(3) of the Dust Diseases Tribunal Act , to tender the transcript of evidence of Bruce Arthur Harris given in Strikwerda v BI (Contracting) Pty Ltd and PHR Pty Ltd (118 of 2004) [2004] NSWDDT 50. 2. The evidence of Mr Harris relates to the knowledge in PHR Pty Ltd (PHR) of the dangers of asbestos. Mr Rundle submits that this is relevant to consider in determining the contribution which PHR should make to the plaintiff's damages, it being agreed now that the plaintiff is entitled to a verdict against the defendants for whom he appears. 3. On 9 May 2005 an order was made requiring each party to identify and notify all material upon which each would rely pursuant to s 25(3) of the Dust Diseases Tribunal Act . This was to have occurred by 17 June 2005. Notice pursuant to s 25(3) was not given until 19 August 2005. Accordingly, it is objected to by Mr Little of senior counsel for the plaintiff. 4. It is a regrettable fact that orders of the Tribunal increasingly are being ignored. Legal representatives who conduct litigation in the Tribunal are presumed to understand the necessity of complying with orders. The overriding concern of the Tribunal is, of course, to ensure that justice is done between the parties. Ordinarily, one would not excuse failure to comply with orders and certainly not unless exceptional circumstances and the interests of justice required that course. No such reason has been demonstrated. 5. Putting that aside for the moment, I think it appropriate to deal with the substantial nature upon which the tender is made, that is that it will affect, in Mr Rundle's submission, the contribution which his client, PHR, is to make to the plaintiff's damages. With all respect to Mr Rundle, I am unable to agree that that is a legitimate consideration in this case. 6. The plaintiff's compensable disorders are divisible in nature. In this respect they are different from progressive massive fibrosis, which was considered by the Court of Appeal in Commercial Minerals Ltd v Harris (1999) 18 CCR 11, bronchogenic carcinoma and mesothelioma, all of which are indivisible. The task upon which I will be required to embark at the conclusion of the evidence, is to assess the damage; that is the extent of the injury caused by exposure for which each defendant is liable. The consideration will be one of causation alone, because the plaintiff's injury is the result of a cumulative process. Relative culpability will be irrelevant. 7. It would be relevant to consider the knowledge of a defendant in a case where the injury was indivisible; that is, in a case of progressive massive fibrosis, bronchogenic carcinoma or mesothelioma. In determining contribution in such cases, a court is required to consider not only causative contribution, but also relative culpability. The state of knowledge of the dangers of asbestos would be a relevant factor in assessing the extent of culpability, but in this case, where we are considering a cumulative process causing divisible damage, such a considerable is irrelevant. 8. Accordingly, I reject the tender of the transcript of evidence of Mr Harris in Strikwerda's case. G F Little, SC instructed by Turner Freeman appeared for the Plaintiff G P F Rundle instructed by Thompson Cooper Lawyers appeared for the Third and Fourth Defendants 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.