Dust Diseases Tribunal New South Wales Medium Neutral Citation: (re Brassil) Comcare v Amaca Pty Limited [2016] NSWDDT 1 Hearing dates: 5 April 2016 Date of orders: 11 April 2016 Decision date: 11 April 2016 Before: Kearns J Decision: For reasons given, I direct Comcare to provide further answers to requests 4.b. and 4.d. so numbered in the letter of 10 March 2016 from Sparke Helmore to Mills Oakley Lawyers being Annexure E to the affidavit of Nimisha Welgama affirmed on 22 March 2016. Category: Procedural and other rulings Parties: Comcare (plaintiff) Amaca Pty Limited (defendant) Representation: Counsel: Mr J Sharpe, instructed by Sparke Helmore, appeared for the plaintiff Mr T G R Parker SC, instructed by Mills Oakley Lawyers, appeared for the defendant File Number(s): DDT 351/2014 RULING 1. Mr Brassil was employed by the Commonwealth Department of Housing at Concord Hospital from 1972 to 1997. During part of that period he was exposed to asbestos in the course of his work. Mr Brassil contracted mesothelioma from his exposure to asbestos. He sued Comcare, responsible for the liabilities of his employer. On 15 October 2012, judgment was entered in his favour. 2. Comcare now seeks indemnity or contribution from Amaca in respect of its liability to Mr Brassil. This is on the basis that the asbestos to which he was exposed, or part of it, was asbestos manufactured and supplied by James Hardie & Coy Pty Ltd, for whose liabilities Amaca is responsible. 3. Comcare filed the statement of claim on 14 October 2014. There has been an exchange of correspondence relating to particulars. 4. Usefully the letter of 10 March 2016 from Comcare's solicitors supplying particulars (Annexure E to the affidavit of Nimisha Welgama affirmed on 22 March 2016) sets out the requests made on behalf of Amaca. 5. The last item of that letter, item 6, is no longer in issue. One matter not covered by that letter is the period over which Mr Brassil has alleged to have been exposed to asbestos. It is now confined to the period from 1972 to 31 December 1989. 6. Amaca asserts that Comcare has not provided to it adequate particulars to which it claims to be entitled and which it has sought. Amaca accordingly seeks an order that Comcare supply the particulars that have been sought. 7. I was directed by both parties to some law in relation to particulars. Mr Sharpe who appeared for Comcare directed me to a decision of Curtis J Laurie v Amaca Pty Ltd [2006] 4 DDCR 308. Like Curtis J I find most useful the statement of principle by Hunt J in Sims v Wran (1984) 1 NSWLR 317 at 321 to 322 where Hunt J said: There is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is to be proved. It all depends upon what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise… 1. I turn to the particulars sought and the responses. The first request 1. Identify each of the relevant products allegedly manufactured by our client... 1. This has been adequately answered to meet the necessary test. It is unfortunate that the answer contains a whole lot of unnecessary material but Comcare has identified each of the products relied on. The fact that Mr Brassil did not allege exposure to some of the products such as millboard and high temperature is not to the point. Comcare is entitled to make a case that Mr Brassil was exposed to product that he has not spoken about. Evidence from other sources may or may not make good that part of the case. The use of the word "including" in specifying products it is alleged Mr Brassil was exposed to is unfortunate and it should not have been used. The assertion by Amaca that it allows Comcare to lead evidence about other products is not realistic. The products of Amaca that Comcare relies on are so extensive that realistically there is no other that could be relied on. Further, if truly a surprise does emerge it is within the power of the Tribunal to deal with that problem when it arises. 2. In relation to this particular request, Amaca required Comcare to supply, in relation to each product relied on, the following particulars: a. Specify the period of time over which the product was allegedly manufactured; b. Specify the alleged asbestos content (including fibre type) in the product over that period; c. Specify the manner in which the product was packaged and (where known) labelled over that period; d. (If not supplied by our client during that period) identify who supplied the product to the Commonwealth and when it was supplied. 1. As to a., the answer was, "From 1969...". That is a satisfactory answer. Amaca will have a case that there was a time within that period relied on when it ceased manufacturing different asbestos products. That may be so and it may be the fact. The test however is not whether the allegation made is true. The test is as expressed by Hunt J. The answers to b. and c. seem to be Comcare's way of saying that in relation to these matters Amaca could not possibly be caught by surprise at the hearing because it has the knowledge it is seeking. That may well be so but Amaca says it is entitled to know the case Comcare seeks to make here. I do not understand that in relation to these particulars. I fail to see how these matters are matters that go to particulars at all. The allegation is that Amaca manufactured. What the content of asbestos was and how the product was packaged may be matters going to evidence, not particulars. It would be possible for the "manufacture" allegation to be made out without any evidence as to the asbestos content or as to the packaging. 2. Item d. is also irrelevant to the allegation of "manufacture". Whoever supplied it has no bearing on whether Amaca manufactured it. The second request: 2. Identify for each of the relevant products allegedly supplied by our client, and for each product specify: a. The period of time over which the product was allegedly supplied; b. The alleged asbestos cement content (including fibre type) in the product over that period; c. The manner in which the product was packaged and (where known), labelled over that period; d. Provide full particulars of the relevant supply contract(s) and deliveries, together with copies of any relevant tenders, terms, orders and delivery notes (if available). 1. For reasons given in relation to the first request, the particulars supplied in relation to 2.a., b., and c. are adequate. 2. I consider the answer to 2.d. is also adequate. If the answer is wrong that might reflect on the integrity and bona fides of those supplying the information, but I am in no position to order the supply of particulars in relation to material that I am informed is not available and in respect of which there is no evidence to the contrary. The third request: 3. For each of the products identified in answer to questions 1 and 2: a. Is it alleged that Mr Brassil was exposed to asbestos emanating from the installation of the product… 1. Comcare answered this request, "Yes". That was an adequate answer. It went on to add a number of paragraphs unnecessary in answer to this request, but as it turns out relevant to some later requests. b. Period of time over which the alleged exposure took place 1. In this request Amaca seeks particulars as to the period of time over which the alleged exposure took place. The answer was that it took place during the course of Mr Brassil's employment at the hospital. This needs to be read as limited to a period ending on 31 December 1989. As I read the letter supplying the particulars, this answer should be read with the answer to 3a. So read, the occasions of Mr Brassil's employment when he was exposed to asbestos from installation work are those spelt out in 3.a. So read I consider the answer to be adequate. If Comcare considers that the particulars should be read in a wider manner and that the case is meant to be wider then it will need to correct this answer. As it stands however the particulars are adequate in relation to the allegations that are made. 2. There is one matter that I need to deal with specifically and that is Amaca's request that the particulars be supplied in relation to each product that Comcare says Mr Brassil was exposed to. The particulars supplied identify some product specifically and otherwise give a job description from which it is possible to discern what the product was. There can be no element of surprise to Amaca in these particulars. c. The nature of the installation works 1. In 3.c. Amaca seeks particulars as to the nature of the installation works. The response was to rely on the answer given to 3.a. For reasons given in relation to 3.b. this answer is adequate. d. By whom the installation works were allegedly undertaken and supervised 1. In 3.d. Amaca sought particulars as to the identity of the person or persons who undertook and supervised the installation works. The answer was, "Mr Brassil has not provided any information in this regard other than to say that Mr Don Macarthur was the Boiler House Manager (at paragraph 42 of his Affidavit)". No doubt a whole lot more information could have been given in answer to this request, but this request is not a matter for particulars. Comcare's allegation is that Mr Brassil was exposed to asbestos from installation work. It does not matter who did it. Either he was so exposed or he was not. Knowing the identity of who did it or who supervised it might assist in determining the truth or otherwise of the allegation, but it is not a matter that goes to particulars. e. The nature and frequency of Mr Brassil's alleged exposure 1. In request 3.e. Amaca sought particulars as to the nature and frequency of Mr Brassil's alleged exposure. The answer repeated the answers given in 2.a. and 3.a. For reasons given I think this answer is adequate. The fourth request: 4. Is it alleged that Mr Brassil was exposed to asbestos emanating from the product in situ (including any repair or maintenance works)... 1. The answer was "Yes" and this answer is adequate. a. The period of time over which the alleged exposure took place 1. In 4.a., Amaca sought particulars as to the period of time over which the alleged exposure took place. The answer was that it was during the course of Mr Brassil's employment and I consider that answer to be adequate. b. the nature of any relevant repair or maintenance works 1. In 4.b., Amaca sought particulars as to the nature of any relevant repair or maintenance work. The answer misses the point of the request. The request goes to repair and maintenance work. The answer goes to asbestos in situ. Again, reading the responses as a whole, it seems that Comcare in answer to this request is relying on the information supplied in answer to 3.a. where there is reference to work in the nature of repair and maintenance. However, this does need clarification and Comcare should provide a further answer to this request. c. By whom any relevant repair or maintenance works were allegedly undertaken and supervised 1. In 4.c., Amaca seeks particulars as to the identity of the person or persons who undertook and supervised repair and maintenance work. The plaintiff responded by referring to its answer to 3.d. For reasons given in relation to 3.d. I think this answer is adequate. 2. In 4.d., Amaca sought particulars as to the nature and frequency of Mr Brassil's alleged exposure. The response was to refer to the answers "provided at 4(a) and 4(b)". The answer to this request, however, will be consequent on the answer to 4.b. That is a request that requires a further answer. The answer may remain the same, but in providing a further answer to 4.b., Comcare should provide a further answer to 4.d. The fifth request: 5. Is it alleged that Mr Brassil was exposed to asbestos emanating from the removal of the product... 1. The answer to this request was "Yes" and that is adequate. a. The period of time over which the alleged exposure took place 1. In 5.a., Amaca sought particulars as to the period of time over which the exposure took place. The response was that it took place over the period of Mr Brassil's employment at the hospital. For reasons given that answer is adequate. b. The nature of the removal works 1. Request 5.b. requested particulars as to the nature of the removal works. In that answer the response was to refer to the affidavit of Mr Brassil and to four specific paragraphs of that affidavit. The nature of the removal works, in my view, is adequately set out in that response. c. By whom the removal works were allegedly undertaken and supervised 1. In 5.c., Amaca sought particulars as to the identity of the person or persons who undertook and supervised the removal works. For reasons given in relation to 3.d., I do not consider this to be an appropriate request for particulars. d. The nature and frequency of Mr Brassil's alleged exposure 1. In 5.d., Amaca sought particulars as to the nature and frequency of Mr Brassil's alleged exposure. The response was to refer to the answers in "5(a) and 5(b)" and, in my view, that is an adequate response. Direction 1. For reasons given, I direct Comcare to provide further answers to requests 4.b. and 4.d. [Amended as follows pursuant to the slip rule] in the letter of 23 February 2016 from Mills Oakley Lawyers to Sparke Helmore Lawyers so numbered in the letter of 10 March 2016 from Sparke Helmore to Mills Oakley Lawyers being Annexure E to the affidavit of Nimisha Welgama affirmed on 22 March 2016. ********** 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: 14 April 2016