QBE Workers Compensation (NSW) Ltd v BAe Systems Regional Aircraft Ltd [2010] NSWSC 82 (19 February 2010)

Last Updated: 25 February 2010

NEW SOUTH WALES SUPREME COURT

CITATION:
QBE Workers Compensation (NSW) Ltd v BAe Systems Regional Aircraft Ltd [2010] NSWSC 82


JURISDICTION:


FILE NUMBER(S):
2003/20251

HEARING DATE(S):
9 November, 17 December 2009, 8 February 2010

JUDGMENT DATE:
19 February 2010

PARTIES:
QBE Workers Compensation (NSW) Ltd - (Plaintiff)
BAe Systems Regional Aircraft Ltd - (Defendant)

JUDGMENT OF:
Latham J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable



COUNSEL:
L King SC / M Jenkins - (Plaintiff)
Defendant - RE Williams QC / N Kirby - (Defendant)

SOLICITORS:
David Thomas Newey Gillis Delaney Lawyers - (Plaintiff)
Norton White Lawyers - (Defendant)


CATCHWORDS:
PROCEDURE - Leave to amend Statement of Claim - no reasonable cause of action - abuse of process - dismissal of proceedings

LEGISLATION CITED:
Workers Compensation Act 1987
Civil Procedure Act 2005

CATEGORY:
Principal judgment

CASES CITED:
QBE Workers Compensation (NSW) Ltd v BAe Systems Regional Aircraft Ltd [2005] NSWSC 232
QBE Workers Compensation (NSW) Ltd v BAe Systems Regional Aircraft Ltd (formerly British Aerospace Commercial Aircraft Ltd) Co. [2006] NSWCA 131
State of NSW (Ambulance Service of NSW) v McKittrick [2009] NSWCA 63
Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144
QBE Workers Compensation (NSW) Ltd v BAe Systems Regional Aircraft Ltd (formerly British Aerospace Commercial Aircraft Ltd) Co (No. 2) [2006] NSWCA 135
Dennis v ABC [2008] NSWCA 37
Arthur Anderson Corporate Finance v Buzzle Operation Pty Ltd [2009] NSWCA 104
Haplin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27

TEXTS CITED:


DECISION:
Plaintiff's Notice of Motion dismissed
The proceedings are dismissed pursuant to Rule 13.4(1) UCPR
Costs are awarded against the plaintiff



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

LATHAM J

19 FEBRUARY 2010

2003/20251 QBE WORKERS COMPENSATION (NSW) LTD v BAe SYSTEMS REGIONAL AIRCRAFT LTD

JUDGMENT

1 HER HONOUR : These proceedings have a long and unsatisfactory history which it is necessary to relate in some detail. It is only with the benefit of that history that the respective merits of the Notices of Motion, one filed on 7 August 2009 by the defendant seeking that the proceedings be summarily dismissed, the other filed on 17 September 2009 by the plaintiff seeking leave to file a Further Amended Statement of Claim, can be appreciated.

2 The Notices of Motion came on for hearing on 9 November 2009. It became clear during those proceedings that the draft further amended Statement of Claim failed to take account of material in the plaintiff’s possession upon which it proposed to rely, with the result that the determination of the Notices of Motion was adjourned to a further date, in order to allow the plaintiff to serve a fresh draft of the Further Amended Statement of Claim. It is a matter of some significance to the outcome of these proceedings that the plaintiff had access to this material, and knew of its relevance to the pleadings, for a number of years, before 9 November 2009.

3 The factual background may be briefly and generally described. Between 1990 and 1993, a Ms Chew flew on an aircraft manufactured by the defendant as part of her duties as an air hostess. She commenced workers compensation proceedings in 1995 alleging that she suffered an injury (Multiple Chemical Sensitivity) from exposure to fumes, which were said to contain a toxic substance (TOCP), entering the aircraft cabin. In the alternative, she alleged that her “injury” under the Workers Compensation Act 1987 was constituted by the aggravation of a pre-existing condition (Epstein Barr virus or glandular fever).

4 The plaintiff’s present solicitors were the solicitors on the record for the defendant (Ansett and EastWest airlines) in the workers compensation proceedings. The plaintiff was the workers compensation insurer for both airlines. The employer successfully defended the claim as to the presence of TOCP in the fumes, at any level capable of causing harm to the health of the crew or passengers. Counsel for the airlines conceded in submissions that Ms Chew suffered an injury on the alternative basis. An award of approximately $232,000:00 was made in her favour on 28 April 1999.

5 The plaintiff commenced proceedings in this Court on 26 September 2003 under s151Z of the Workers Compensation Act 1987 to recover that amount from the defendant. The lapse of four and a half years may not be unreasonable in the context of such proceedings, although the defendant’s claim of presumptive prejudice owing to further unreasonable delay must be assessed after a consideration of the whole of the circumstances. They are set out below.

The Proceedings Since September 2003

The Statement of Claim and the Proceedings before Howie J.

6 The Statement of Claim contained the following paragraphs :-

5. The worker’s injuries were caused by her inhalation of mobile jet fuel and fuel fumes ("the fumes") which entered the cabin of the BAe 146 aircraft on which the worker was deployed by Ansett and EastWest.

6. The fumes which were inhaled by the worker contained TOCP which caused the worker’s injuries and disabilities for which Ansett and EastWest were required to pay compensation under the Act.

7. The defendant was the manufacturer of each of the 146 series 200 and series 300 passenger aircraft ("the aircraft") on which the worker was deployed by Ansett and EastWest

8. The defendant owed the worker a duty to take reasonable care for the safety in the design and manufacture of the aircraft.

9. In breach of its duty of care the defendant's aircraft contained designed and manufactured defects.

7 This aspect of the pleadings was the subject of a decision by Howie J. of 24 March 2005 : QBE Workers Compensation (NSW) Ltd v BAe Systems Regional Aircraft Ltd [2005] NSWSC 232. Amongst other issues that arose in the course of those proceedings, his Honour dealt with a submission by the defendant that the Statement of Claim should be set aside, either on the basis that there was insufficient prospect of success to require a foreign entity to be put to the trouble and inconvenience of defending proceedings in this Court, or on the basis that the proceedings amounted to an abuse of process. The first of these bases arose out of the defendant's resistance to service outside the jurisdiction and the operation of Part 10 rule 6A of the Uniform Civil Procedure Rules (UCPR).

8 The substance of Howie J’s decision and the reasons underlying it are best summarised at [65] of the judgment :-

Whether an action is an abuse of process or in some other way improper of course depends upon the particular circumstances of the case. I take into account for present purposes the following : that BAe is a defendant without a presence in Australia; that the claim made by QBE is one for indemnity for compensation payments; that those payments were ordered on a basis apparently inconsistent with the claim being made against BAe; that QBE, for whatever reason, chose to dispute that aspect of the worker's claim that was most consistent with liability by BAe for her injuries; that QBE led evidence and made submissions opposing that aspect of the worker's claim; that it succeeded in persuading the Compensation Court to reject that aspect of the claim; that there is no evidence before me to explain how QBE intends to prosecute the Statement of Claim in a way consistent with the manner in which it defended the worker's claim in the Compensation Court; and that having regard to the evidence it lead in the Compensation Court, on the face of it QBE has no reasonable prospect of succeeding in proving that BAe breached the duty of care it owed the worker.

9 Central to his Honour's finding that QBE chose to dispute that aspect of the worker's claim that was most consistent with liability on the part of the defendant, was the submission made on behalf of the employer in the Compensation Court in the following terms :-

(a) there is relatively little dispute that from time to time the applicant in the course of her employment with the respondent was exposed to fumes, vapours or smoke ... of varying character and varying composition during the period about January 1992 to October 1993;

(b) as to the various composition of the fumes to which the appellant was exposed, even if those fumes contained mobile jet oil 2, those fumes did not contain any TOCP and (other than a transient irritant effect) the presence of mobile jet oil 2 in the fumes, if any, did not give rise to any damage to the physiology of the applicant.

10 Judge Moran in the Compensation Court accepted these submissions and the evidence underlying them, to the effect that, given the low level of contaminants, the air in the cabin was not a threat to the health of the crew or passengers. The employer also called a number of medical experts who denied the validity of a diagnosis of multiple chemical sensitivity. They too were accepted by Judge Moran. (See [8], [20] – [25] of Determination No. 19652 of 1995, the Compensation Court of New South Wales, 28 April 1999, Exhibit ACJ1 to the affidavit of Alana Claire Jessep of 3 August 2009 ; see also at [55] and [58] of QBE Workers Compensation (NSW) Ltd v BAe Systems Regional Aircraft Ltd [2005] NSWSC 232 )

11 At [61] of Howie J's judgement, his Honour makes the following observation, having regard to the alternative basis upon which the worker recovered compensation from her employer :

I do not believe that QBE has any basis for asking a court to find that BAe ought to have reasonably foreseen that, notwithstanding that the fumes were not injurious to the health of persons generally, there might have been in the cabin persons, who, because of some pre-existing condition, could be injured by inhalation of the fumes. The possibility of QBE proving that BAe ought reasonably to have foreseen the risk of injury from non toxic fumes to some person such as Ms Chew and should reasonably have taken some action to eliminate that risk seems to me to be so remote as to be realistically nonexistent. Although QBE was aware of the application to set aside the Statement of Claim based upon its conduct of the proceedings before Judge Moran, no evidence was placed before me in an attempt to explain how it might be that QBE's present claim could stand alongside its conduct in the earlier proceedings.

12 These comments remain relevant to the approach taken by the plaintiff in the instant proceedings.

The Proceedings in the Court of Appeal

13 The plaintiff appealed to the Court of Appeal against Howie J.'s decision : QBE Workers Compensation (NSW) Ltd v BAe Systems Regional Aircraft Ltd (formerly British Aerospace Commercial Aircraft Ltd) Co. [2006] NSWCA 131. On 19 May 2006, the Chief Justice, with whom Tobias JA and McColl JA agreed, delivered an extempore judgment, in the course of which the Chief Justice accepted that Howie J. had set aside the Statement of Claim on each of two alternative grounds, namely that the proceedings had insufficient prospects of success and that the proceedings were an abuse of process.

14 Importantly for present purposes, the Chief Justice referred to paragraphs 5 and 6 of the Statement of Claim and noted that "an issue has arisen in this Court as to the proper interpretation of paragraphs 5 and 6." Paragraph 5 contained the word "fumes", whereas paragraph 6 added a reference to TOCP. It was "the presence of those words in paragraph 6 of the Statement of Claim that [became] central to the disposition of [the] appeal." Further, the issue that concerned the Court of Appeal, and was accepted by that Court as the basis for Howie J.'s decision, was "whether or not it was the intention of the pleadings to rely on TOCP."

15 Ultimately, the disposition of the appeal rested upon a declaration by counsel on behalf of the plaintiff that "that was not the position taken by the [plaintiff] and that in substance the reference to TOCP in paragraph 6 of the Statement of Claim was surplusage. The position of the [plaintiff] was that it wished to proceed on the basis on which the Compensation Court had made its finding, ie, that by reason of the presence of fumes in the cabin, the worker had recovered compensation and it was the presence of fumes, without any particular reference to the presence of any toxic element, which constituted the negligence claim that it wished to pursue against the [defendant]."

16 The Court then allowed the appeal, set aside the orders made by Justice Howie and struck out the reference in paragraph 6 to TOCP. In doing so, the Court made clear that the "proceedings have turned only on the question of the presence of TOCP in the Statement of Claim. Nothing I have said indicates one view or another about the prospects of success with respect to a case based on the presence of fumes generally in the cabin." The Court allowed the defendant a further 28 days within which to file a Notice of Motion seeking to have the Statement of Claim set aside on the basis that there were no reasonable prospects of success in respect of a claim mounted on the basis of the general presence of fumes.

17 On 29 May 2006, the Court of Appeal ordered costs in the proceedings before Howie J. and on the appeal against the appellant/plaintiff : QBE Workers Compensation (NSW) Ltd v BAe Systems Regional Aircraft Ltd (formerly British Aerospace Commercial Aircraft Ltd) Co (No. 2) [2006] NSWCA 135. The factors leading to that decision are expressed at [14] to [16] of the judgment :-

It can be seen that there were two elements here; the presence of TOCP and its toxicity. The submissions indicate that QBE was relying on the presence of TOCP in the fumes but, on one interpretation, it was not relying on the toxic quality of TOCP. However, the position was far from clear. Such ambiguity as existed was the responsibility of the appellant. Throughout the submissions before Howie J., QBE maintained a right to advance a case inconsistent with the findings of the Compensation Court.

The appellants did not at trial, in its Notice of Appeal or in its written submissions on appeal, characterise the reference to TOCP as essentially descriptive. It insisted, until questioned from the Bench in the course of oral submissions on appeal, on maintaining its pleading. It was not until the issue was raised in oral submissions on appeal that the appellant accepted that the words could be struck out.

The whole of the proceedings before Howie J. and in this Court turned on the presence of words which the appellant now accepts to have been surplusage. The costs wasted are, in my opinion, entirely due to the appellant's conduct.

18 It is important to observe, before continuing, that the basis expressed by counsel for the plaintiff in the Court of Appeal for the action in negligence against the defendant, namely, “the basis on which the Compensation Court had made its finding, ie, that by reason of the presence of fumes in the cabin, the worker had recovered compensation”, significantly omits an important qualification. The employer conceded in the Compensation Court that the worker was entitled to recover for an injury consisting of an aggravation of a pre-existing condition. Part of the employer’s concession in this regard was that the worker was unusually susceptible, that is, no other person could be injured by the non-toxic fumes : see Compensation Court Determination at [8] and [21]. This aspect of the proceedings in the Compensation Court was, no doubt, what prompted Howie J to say what he said at [61] of his judgment, set out at [11] above.

The Amended Statement of Claim and the Request for Particulars

19 The Amended Statement of Claim filed on 19 May 2006 was identical to the original Statement of Claim, but for the deletion of the words “contained TOCP which”, conformably with the Court of Appeal’s decision. Thus, the claim alleged that fumes of no particular composition caused the injury to the worker.

20 On 25 October 2006 the defendant's solicitors wrote to the plaintiff's solicitors seeking further and better particulars of the Amended Statement of Claim. The plaintiff responded on 18 September 2008, almost two years later. In the meantime, the defendant filed a Defence on 31 October 2006, which simply did not admit or expressly denied the plaintiff’s allegations.

21 With respect to paragraph 5, the defendant asked the plaintiff to identify the chemical or chemicals in the jet oil and fuel fumes which allegedly caused the injury to the worker. The defendant further sought details as to the concentration or quantity of each chemical which the plaintiff alleged caused the injury to the worker or, if unable to specify the precise concentration, then the quantity or concentration of each chemical which exceeded the safe levels in each case.

22 In view of the history of the litigation to date, this appears to be a reasonable and proper request. The employer’s expert witnesses, who were accepted by the Compensation Court, provided a statement to that Court (Exhibit 9) which included :-

The panel finds that the low levels of detected exposure to all the measured chemical contaminants are not a threat to the health of aircrew or passengers. In particular these pose no carcinogenic, mutagenic, teratogenic or cumulative toxicological hazard. Contaminant levels were found to be well below the internationally accepted occupational health standards and cannot precipitate any chronic disorders. The possibility that these odour exposure events could cause flight crew incapacitation was considered. All the measured levels were hundreds to thousands of times below those levels known to cause acute neuro toxic sequelae. (italics not in original)

23 It must have been within the capacity of the plaintiff to know which chemical contaminants were measured by the panel and whether there were other chemical contaminants that were identified in the fumes but not measured. The levels of those chemical contaminants that were measured were also potentially within the plaintiff's knowledge. However, the plaintiff responded “subject to the completion of discovery, it is not the plaintiff’s case that a particular chemical or chemicals caused the worker injury” and “subject to the completion of discovery, it is not the plaintiff’s case that any particular concentration or quantity of a chemical or chemicals caused the worker’s injuries.”

24 With respect to paragraph 6, the particulars requested clarification of the injuries and disabilities suffered by the worker, and whether it was now alleged that the plaintiff suffered from "multiple chemical sensitivity" (a diagnosis which the plaintiff disputed and was rejected in the Compensation Court) or whether it was now alleged that the worker suffered from an aggravation of a pre-existing condition (the basis for recovery by the worker in the Compensation Court).

25 The answer provided by the plaintiff confirmed that it was the latter and not the former.

26 In respect of paragraph 9, which alleged that there were design and manufacture defects in the aircraft that constituted a breach of the duty of care, the defendant sought particulars, amongst others, as to whether the plaintiff was alleging that the design of the aircraft was not approved by the relevant authority or not manufactured in conformity with an approved design; what should have been included in the design so that fumes could not enter the cabin; what part of the design of the aircraft was alleged to have been deficient; what steps the defendant ought to have taken to ensure that the cabin of the aircraft contained an effective seal and where that seal should have been located; whether the seal that was in place was ineffective and in what way; what chemicals the defendant ought to have tested for and at what concentrations or quantities; and what tests the defendant ought to have conducted on the engine components and which of those components ought to have been tested to ensure that they did not admit fumes which could enter the cabin.

27 The plaintiff was privy to the proceedings in the Compensation Court as the employer’s insurer. It is reasonable to assume that the plaintiff had access to information relating to the design and manufacture of the relevant aircraft and the chemical constitution of the fuel used by those aircraft. The extent of the detail of that information may not have been as great as one would find in the manufacturer. The plaintiff confirmed that there was no allegation of unapproved design or manufacture. However, the answer to the remaining questions was “this will be fully particularised following completion of discovery”.

28 Not surprisingly, the defendant’s solicitors in their reply of 25 March 2009 objected to the suggestion that the plaintiff could not define its case in relation to the cause of the alleged injury, the basis on which it was alleged that the defendant owed the plaintiff a duty of care, or the alleged breaches of that duty, until discovery was completed. The defendant disputed that the facts relevant to the allegations in the pleadings were solely within its knowledge, given that the plaintiff, as the insurer of the employer in the workers compensation proceedings, was privy to all the information available to that employer in relation to the design and operation of the relevant aircraft, the evidence in relation to the nature or composition of the fumes and the nature and cause of the worker’s injuries.

29 On 16 April 2009, the plaintiff acknowledged receipt of the defendant's letter and indicated that their reply was being finalised and would be provided shortly. It appears that no reply was sent before the defendant took the step of filing the Notice of Motion for dismissal in August that year.

The Draft Further Amended Statement of Claim of 9 September 2009.

30 This Statement of Claim appears as an annexure to the affidavit of David Collinge of 9 September 2009. It was filed in support of the plaintiff’s Notice of Motion on 17 September 2009. It substantially re-drafted the Amended Statement of Claim, including the addition of Ansett Australia Ltd and East West Airlines Ltd as plaintiffs. For present purposes, the most significant paragraphs in the draft Further Amended Statement of Claim are the following :-

11. In the course of her employment as a flight attendant on the BAe aircraft in the period between January 1992 and 30 October 1993 the worker was exposed within the cabin of the BAe aircraft to odours, obnoxious smells, smoke, vapours, haze and fumes (collectively called "the fumes").

12. In or about March 1992 the worker suffered from a condition of glandular fever or viral infection known as Epstein Barr virus (called "the viral infection").

13. The exposure of the worker to the fumes aggravated, accelerated or exacerbated the worker's viral infection (called "the aggravation").

16. By reason of the negligence of the defendant the worker suffered the aggravation causing to the worker injuries, loss and damage.

Particulars of injuries and disabilities

(a) a multiple chemical sensitivity syndrome.

(b) multiple chemical sensitivity.

(c) multiple chemical susceptibility or vulnerability.

(d)..............................

.......................................

(dd)....................................

31 Whilst the plaintiff adhered to the allegation that fumes simpliciter caused the aggravation of the worker’s condition, the introduction of the references to a multiple chemical sensitivity syndrome traverses the findings made by Judge Moran in the Compensation Court proceedings and contradicts the stance taken by the employer in those proceedings.

32 On 6 November 2009, the plaintiff's solicitor swore an affidavit relating to folders of copy documents which stated, inter alia, "I have obtained access to documentation of the proposed plaintiffs [a reference to Ansett and EastWest] which relate to the proposed plaintiffs’ respective fleets of BAe 146 aircraft and the issue of fumes encountered within the cabin ... whilst in use by the proposed plaintiffs." The affidavit went on to assert that "the file held by the plaintiff does not provide any assistance in respect of the particulars sought by the defendant" and that "in light of the above matters, I believe that the plaintiff and the prospective plaintiffs have given the best particulars they are able in relation to the request of the defendant."

33 There was nothing in the affidavit to suggest that access to the material was unavailable before November 2009. This affidavit, together with two folders of material that constituted the documents referred to above, and a draft Further Amended Statement of Claim was served on the defendant late that day, being the Friday afternoon before the hearing of the Notices of Motion on 9 November 2009. This draft Further Amended Statement of Claim reformulated the particulars of injury by deleting (a) and (b) of paragraph 16 of the Further Amended Statement of Claim filed on 17 September 2009. Whether “multiple chemical susceptibility or vulnerability” differs in substance from “multiple chemical sensitivity” and/or “multiple chemical sensitivity syndrome” is questionable.

The Proceedings on 9 November 2009

34 The plaintiff sought to defend its failure to provide a meaningful response to the defendant’s request for further and better particulars by reliance upon State of NSW (Ambulance Service of NSW) v McKittrick [2009] NSWCA 63. However, that case does not support the proposition that there is no obligation to provide particulars at all in indemnity proceedings under s 151Z. In Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144, applied in McKittrick, Giles JA (with whom Mason P and Santow JA agreed) said :-

[18] The purpose of particulars is to assist in defining the issues at the trial, whereby the opposite party knows the case it has to meet and will not be taken by surprise, so that the evidence to be led can be appropriately confined and costs can be limited by avoiding the expense of preparing to meet issues which will not arise. Giving particulars of the case to be made out has been distinguished from disclosing the evidence by which the case is to be proved, but the distinction is not a clear one and the touchstone must be what is reasonably necessary to achieve the purposes last-mentioned. Authority is hardly necessary, but there can conveniently be set out from the judgment of Hunt J in Sims v Wran (1984) 1 NSWLR 317 at 321-2 -

“The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet: Saunders v Jones (1877) LR 7 Ch D 435 at 451; R v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738 at 740; Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664. The object of particulars is to save expense in preparing to meet a case which may never be put: McSpedden v Harnett (1942) 42 SR (NSW) 116 at 119; 59 WN 98; Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228 at 229; and to make the party's case plain so that each side may know what are the issues of fact to be investigated at the hearing:Kelly v Kelly (1950) 50 SR (NSW) 261 at 265; 67 WN 193 at 196; Bailey v Federal Commissioner of Taxation [1977] HCA 11; (1977) 136 CLR 214 at 219. See, generally,Phillopini v Leithead [1959] SR (NSW) 352 at 358, 359; 76 WN 150 at 152; Commercial Bank of Australia Ltd v Thomson (1964) 81 WN (Pt 1) (N.S.W.) 553 at 557, 558; Ellis v Grant (1970) 91 WN (NSW) 920 at 924, 925. It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet: Turner v Dalgety & Co Ltd (at 229); Phillopini v Leithead (at 359; 152); Emmerton v University of Sydney [1970] 2 NSWR 633 at 635; Bailey v Federal Commission of Taxation (at 219, 220, 221).

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; the starting point is not what can be said without disclosing the evidence to be led.”

...........................................................................

[29] The general principles in relation to particulars, as described in the passage from Sims v Wran earlier set out, are well established. So also is it established that a party is obliged only to provide the best particulars it can, so that a party in a representative capacity (for example) may only be able to give general particulars (see Higgins v Weekes (1888) 5 TLR 238). The application of these principles in a claim for indemnity under s 151Z(1)(d) will depend on the circumstances, including whether the worker is co-operative towards the plaintiff, and it is not for this Court to prescribe in the abstract. It should not be forgotten that parties have a duty to assist the court to further the just, quick and cheap resolution of the real issues in proceedings (Civil Procedure Act, 2005, s 56).

35 Having regard to the shifting nature of the pleadings in this Court, and the basis upon which the worker recovered in the Compensation Court, the defendant was, in my view, justified in seeking elucidation of the case the plaintiff proposed to run. The defendant could not be expected to have adequate knowledge of what the plaintiff alleges are the facts, if the plaintiff’s pleadings disclosed uncertainty on the part of the plaintiff as to the facts it alleged. The plaintiff is not pursuing the defendant in a representative capacity. Whilst it may be true to say in some cases that the plaintiff ought not be taken to be aware of the worker’s case below, that is not this case. The plaintiff has not been able to ascertain whether the worker is co-operative towards the plaintiff, although I note that enquiries of the worker in that regard were only made shortly before Mr Collinge’s affidavit of 6 November 2009.

36 That the plaintiff’s case remained unclear, and potentially at odds with the case its solicitors conducted before the Compensation Court, as late as 9 November 2009 is demonstrated by the statement by the plaintiff’s counsel to the Court that :-

The allegation is [the aircraft] was manufactured, designed, marketed and supplied by the defendant and there is material which is available which I will seek to tender in a moment which goes to show in the period of January 1992 to December 1992, that is, in the year before the injury was finally sustained by Ms Chew, that there were many complaints of smoke hazard and smells which are contemporaneously identified and which caused injury.

................................................................................

The affidavit of Mr Collinge will tell your Honour the air flights in particular which were associated with the problem and this is from historical but contemporaneous documentation, including the crew log material. That is, that the aircraft crew, pilot and cabin staff on each flight filled out an occurrence sheet as to what occurred and indicated in their own hand in the sheets the presence of smoke, the presence of smell, the flight number, the date and the consequences of the presence of the smell. That is, complaints of people suffering headaches, sinus problems, sore throat and feeling ill.

37 In other words, included in the material to which Mr Collinge had regard for the purposes of affirming that the plaintiff was not in a position to provide any better answers to the defendant's request for further and better particulars, was evidence of numerous other occasions when members of the crew were said to have suffered injuries because of the inhalation of fumes. It is difficult to comprehend how the plaintiff could advance such a case against the defendant in 2009 without in some way contradicting the basis upon which Ms Chew's primary claim in the Compensation Court was defeated, that is, that the fumes entering the cabin were benign to everyone other than Ms Chew, or people with her particular viral condition.

38 The plaintiff’s counsel informed the Court that the material exhibited to Mr Collinge’s affidavit would need to be reflected in a Further Amended Statement of Claim and that it was sufficient to adequately particularise the plaintiff’s case without reliance upon any orders for discovery. Ultimately, the plaintiff was granted further time to undertake a further draft and the matter was stood over to 8 February 2010.

39 The plaintiff maintained that the composition of the fumes was a matter for evidence, not for particulars, but later indicated that, because toxicity was no part of its case, “the composition of fumes in the cabin are neither here nor there”. This, to my mind, only compounded the confusion inherent in the pleadings. The position did not improve between 9 November 2009 and 8 February 2010.

The Proceedings on 8 February 2010.

40 The draft Further Amended Statement of Claim dated 14 December 2009 became the focus of submissions on the resumption of the hearing. A number of changes are worthy of attention.

41 The particulars at paragraph 11 and following allege the presence of “noxious smells, odour, smoke, vapour, haze and fumes” that are collectively referred to as “the noxious smell” instead of “the fumes”. Whatever terminology is used, there must be a substance that interacts with the olfactory nerves in order to produce a smell. The pleadings do not avoid the criticisms of the defendant by adopting terminology that fixes on bodily sensations rather than on the substance that causes them. The only further particular relating to the “noxious smell” is that it was “an irritant”. However, “noxious” necessarily conveys that the smell was harmful or injurious to a person’s health or physical well-being.

42 The particulars allege “the occasion of injury to passengers and flight attendants and crew in the cabin” of the aircraft “as a consequence of the presence of the noxious smell”. Particulars of injury to these people generally are given, including “headache, sore eyes, sore throat, dry eyes, dizziness, light headedness, nausea, fatigue, breathing difficulties and breathlessness, feeling faint, itchy eyes, swelling of legs and ankles, chest pain, back pain, neck pain, aches in joints, sore ears and burning sinuses”. The pleadings do not limit these effects to transitory ones. This is the first time in the history of the pleadings that injury to anyone other than the worker has been alleged. If, as appears to be the case, it is now intended to assert that the fumes/smells/smoke/vapour caused injury to others, the defendant is entitled to know what component of the “noxious smell”, and what quantity of that component, is alleged to have caused those injuries.

43 “Multiple chemical vulnerability” remains as a particular of the injuries to the worker. To the extent that it falls short of alleging sensitivity, it would, in my view, nevertheless contradict the position taken by the employer and its insurer in the Workers Compensation proceedings.

Abuse of Process and No Reasonable Cause of Action

44 The Notice of Motion as filed sought the dismissal of the proceedings pursuant to Rule 14.28 UCPR. Whilst the application of that rule focuses on the form of the pleadings and leads to a striking out of the pleadings, the dismissal of the proceedings is available under Rule 13.4 where the proceedings constitute an abuse of process, or they disclose no reasonable cause of action. The defendant pressed for the dismissal of the proceedings on both of these bases. It also relied upon the Civil Procedure Act 2005 in submitting that the Court should refuse the plaintiff leave to file any further Amended Statement of Claim.

45 The successive pleadings and draft pleadings plot a sometimes contradictory and elusive path. In September 2003, it was alleged that the fumes, which contained TOCP, caused injury to the worker. In May 2006, it was alleged that the fumes caused injury to the worker, and that the injury was constituted by the aggravation of a pre-existing condition, not multiple chemical sensitivity. In September 2009, it was alleged that the fumes aggravated a pre-existing condition and thereby caused injury to the worker, including multiple chemical sensitivity. In December 2009, it was alleged that a noxious smell caused injury to passengers, flight attendants and crew, and aggravated a pre-existing condition in the worker, that caused her injuries, including multiple chemical vulnerability. In short, over the course of more than 6 years, the plaintiff has been unable to articulate its case with any clarity, despite being armed since at least 1999 with all the salient facts that gave rise to the workers compensation proceedings, with the possible exception of a level of detail relating to the manufacture and design of the relevant aircraft. However, no allegation of faulty manufacture or unauthorised design has ever been made.

46 Leaving to one side the issue of abuse of process, the plaintiff’s submission that this litigation does not offend against the principles underpinning the Civil Procedure Act and that the plaintiff should be given leave to file a Further Amended Statement of Claim (the draft of December 2009), is without merit. The dictates of ss 56, 57 and 58 of the Act are not empty incantations : Dennis v ABC [2008] NSWCA 37 ; Arthur Anderson Corporate Finance v Buzzle Operation Pty Ltd [2009] NSWCA 104 ; Haplin & Ors. v Lumley General Insurance Ltd [2009] NSWCA 372. They are mirrored in the ACT Rules which were the subject of the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27. It is not to the point, as was submitted by the plaintiff’s senior counsel, that Aon concerned an adjournment of the trial in order to allow an amendment to a statement of claim. Justices Gummow, Hayne, Crennan, Kiefel and Bell addressed the purpose of rule 21 of the ACT Rules (corresponding with ss 56 and 57 of the NSW Act ) in the following terms :-

[92] The purposes stated in rule 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognized some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process.

[93] Rule 21(2)(b) [the equivalent of s 57(1)(d) of the NSW Act] indicates that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon the other litigants. ..................................................

[98] Of course, a just resolution of proceedings remains the paramount purpose of rule 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rules’ reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution.

47 The instant proceedings have been marked by inefficiency. There is no explanation for this “lack of expedition”. It is not suggested that it arises from circumstances beyond the control of the plaintiff. I would refuse the plaintiff leave to file a further Amended Statement of Claim. I turn to consider whether the Amended Statement of Claim of May 2006 discloses a reasonable cause of action.

48 The plaintiff was on notice in March 2005 that the proceedings were doomed to fail, regardless of the allegation of the presence of TOCP in the fumes, because the prospect of proof of foreseeability was “realistically non existent”. I agree with that observation by Howie J. The Court of Appeal did not consider that issue, having wrung the concession from the plaintiff that the reference to TOCP in the Statement of Claim was descriptive. The Court of Appeal did, however, envisage such an attack on the proposed Amended Statement of Claim.

49 The May 2006 Amended Statement of Claim gave no particulars of injuries, alleging simply that “the fumes which were inhaled by the worker caused the worker’s injuries and disabilities for which Ansett and EastWest were required to pay compensation under the Act.” It was only as a result of the answers to the request for better particulars that the injury was confirmed as the aggravation of the worker’s pre-existing condition. In any event, these pleadings did not overcome the problems identified by Howie J. They disclose no reasonable cause of action.

50 Since the decision of the Court of Appeal in May 2006, the further attempts to formulate a basis for liability in negligence essentially sought to grapple with this conundrum : how was the plaintiff to prove foreseeability on the part of the manufacturer of the aircraft, when there were no identifiable unsafe levels of chemicals in the jet oil fumes that were capable of causing injury to anyone other than a person of unusual susceptibility ? The answer is, manifestly, it cannot be done without contradicting the findings made by Moran J and adopting the converse of the position taken by the plaintiff’s representatives in those proceedings. Each successive proposed statement of claim, were leave granted to the plaintiff to file them, is illustrative of an abuse of process in that respect.

51 For all of the above reasons, I make the following orders :-

1. The plaintiff’s Notice of Motion is dismissed.

2. The proceedings are dismissed pursuant to Rule 13.4(1) UCPR
3. Costs are awarded against the plaintiff.

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LAST UPDATED:
22 February 2010