(Re Lorizio) A B & P Constructions Pty Ltd v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) [2006] NSWDDT 18

Dust Diseases Tribunal of New South Wales

CITATION : (Re Lorizio) A B & P Constructions Pty Ltd v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) [2006] NSWDDT 18

PARTIES : A B & P Constructions Pty Ltd Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd)

MATTER NUMBER(S) : 395 of 2004/1

JUDGMENT OF: Duck J at 1

CATCHWORDS: Dust Diseases Tribunal :-

LEGISLATION CITED: S 25(3) Dust Diseases Tribunal Act 1989 S 80 Evidence Act 1995

CASES CITED: McCusker v Seltsam and James Hardie DDT 179 of 1996

DATES OF HEARING: 5, 6, 7, 8 and 9 June 2006 EX TEMPORE JUDGMENT DATE : 06/07/2006

FOR CROSS-CLAIMANT: Mr J Sharpe instructed by Thompson Cooper Lawyers LEGAL REPRESENTATIVES: FOR CROSS-DEFENDANT: Mr G Watson, SC instructed by Phillips Fox

JUDGMENT:

2 Dust Diseases Tribunal of New South Wales Matter Number DDT395 of 2004/1 (Re: Antonio Lorizio) (Settled 17/03/2005) A B & P Constructions Pty Ltd (Cross Claimant) v Amaca Pty Ltd (Formerly James Hardie &Coy Pty Ltd) (Cross Defendant) 7 June 2006 RULING DUCK J 1. The cross-defendant tenders pursuant to s 25(3) of the Dust Diseases Tribunal Act two statements. The first of them is the statement of Janet Melville Sowden which was prepared for use in the case of McCusker v Seltsam and James Hardie, DDT179/96. The second statement is that of David Alexander Ferguson prepared for use in the same case. In tendering the statements Mr Watson of Senior Counsel for the cross-defendant submits that the contents of the statements are historical evidence and general medical evidence concerning dust exposure and dust diseases. I think it fair to say it is common ground that the material has been received in the case of McCusker and probably in a number of other cases as well. 2. With regard to much of the material no objection is taken. In this case an issue which is looming for determination is whether warnings, assuming it be found that they were in fact affixed to asbestos cement sheeting by James Hardie and Coy Pty Ltd, were adequate. Each of the statements tendered contains an expression of opinion on that issue. The fact that the opinion has been expressed no long renders the material inadmissible if it is otherwise admissible, see s 80 of the Evidence Act 1995. It is submitted, however, by Mr Sharpe, learned counsel for the cross-claimant, that those parts of the reports to which he objects do not come within s 25(3) because those parts of the reports are not historical evidence or general medical evidence. The submission is short and clear. The resolution of the point at issue, I think, does not require a great deal of verbiage. Either the opinions come within the section or they do not. 3. The view that I have come to is that those parts of the reports do not consist of historical evidence or general medical evidence. They are simply opinions provided in 1996 by the respective witnesses. That being so, those paragraphs in each of the reports ought be rejected. The consequence will be, I think, that the statement of Janet Sowden will be admitted with the exception that par 11.2, 11.3 and 11.4 are rejected. I will simply put a bracket around them. The report of Professor Ferguson will be admitted except for pars 13.2 and 13.3, which I reject, and I will place brackets around them. The statement of Janet Sowden will become CDX 20, excluding pars 11.2, 11.3 and 11.4. The statement of David Ferguson will become CDX 21, excluding pars 13.2 and 13.3. Mr J Sharpe instructed by Thompson Cooper Lawyers appeared for the Cross-Claimant Mr G Watson, SC instructed by Phillips Fox appeared for the Cross-Defendant