(Re Chapman) State Rail Authority of New South Wales v Amaca Pty Limited & Anor (No. 2) [2004] NSWDDT 30

Dust Diseases Tribunal of New South Wales

CITATION : (Re Chapman) State Rail Authority of New South Wales v Amaca Pty Limited & Anor (No. 2) [2004] NSWDDT 30 State Rail Authority of New South Wales PARTIES : Amaca Pty Limited Wallaby Grip Limited MATTER NUMBER(S) : 38 of 1997 CC 1 JUDGMENT OF: Duck J at 1 CATCHWORDS: :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 1/06/04 DATE OF JUDGMENT: 06/06/2004

FOR CROSS CLAIMANT: Mr M Holmes, QC and Ms T Moisidis instructed by Dexter Healey. LEGAL REPRESENTATIVES: FOR CROSS DEFENDANT: Mr G Watson with Mr J Sheller instructed by Phillips Fox.

JUDGMENT:

1. We are engaged in the hearing of a cross-claim brought by the State Rail Authority against the first cross-defendant, Amaca Pty Limited in circumstances in which the cross-claimant was the employer of a plaintiff now deceased and, in proceedings brought by the deceased man, settled his claim for a sum disclosed by documents now before the court. The cross-defendant is sued as the supplier of asbestos products to the cross-claimant employer. It is the case of the cross-defendant that the settlement was excessive and unreasonable and that is a circumstance which is to be taken into account when determining if any amount should be paid and if so how much ought be paid by the cross-defendant in the circumstances. 2. In yesterday's proceedings medical reports were tendered from a number of expert witnesses. They expressed different opinions and different shades of opinions about the condition of the former plaintiff. Application is made today by the cross-defendant to call Professor Breslin, one of those experts whose reports were tendered yesterday. The professor's reports were in fact tendered by the cross-claimant, no doubt broadly illustrating the range of medical opinions available at the time of the settlement. The cross-defendant today wishes to call the professor: to explain and no doubt give added force to the views that he expressed in his reports five years ago. 3. It is submitted that this course is proper because it goes to the issue of what is just and equitable so far as the cross-claim is concerned. The forensic problem this approach throws up has caused the cross-claimant to object. It is submitted by the cross-claimant that it is placed in a position of prejudice because it has no means of knowing what is coming except by reference to the professor's earlier reports and no means of dealing with whatever new material is thrown up by the evidence about to be given. 4. I accept the proposition that evidence may be given to demonstrate that a settlement was excessive or unreasonable, particularly in the light of what the High Court said in Bitumen and Oil Refineries (Australia) Limited v The Commissioner for Government Transport (1954-55) 92 CLR 200 at 212-213. 5. If the professor has opinions which are relevant to that issue it seems to me that they ought be reduced to report form and served on the opposing party so that whatever the opinions are they can be addressed and dealt with in an ordinary way. That has not happened at this stage. What is proposed is that Professor Breslin be called and we can wait and see whatever it is he thinks. 6. I do not believe that that is a satisfactory way to proceed. It is clear that there may be things which the professor has to say which will bear on whether the settlement was excessive and unreasonable. So that the trial may proceed in an ordinary way those matters ought be reduced to report form and served on the cross-claimant. 7. That being so I reject the application for leave to interpose the professor at this stage. To the extent, I wish to add, that this causes inconvenience because I know Professor Breslin is here in court, I regret it, but I think to proceed in the alternative fashion will produce unfairness and perhaps even greater inconvenience later. Mr M Holmes QC with Ms T Moisidis instructed by Dexter Healey appeared for the cross-claimant Mr G Watson SC with Mr J Sheller instructed by Phillips Fox appeared for the cross-defendant