Keith Henry Evans v Queanbeyan City Council [2009] NSWDDT 22

Keith Henry Evans v Queanbeyan City Council [2009] NSWDDT 22

Leave to amend the Statement of Claim to join Amaca as defendant is granted because, although evidence is limited for the period 1942–1975, it is possible that Mr Evans can advance a viable case if expert evidence establishes that any exposure to Amaca’s asbestos products materially contributed to his diseases or that injury is indivisible. The lack of direct evidence does not necessarily preclude a fair trial, and the plaintiff should be permitted to attempt to establish causation, possibly by evidence of market share and expert opinion; this approach is not an abuse of process at the current stage.

Jurisdiction
Australia
Judgment Date
18 September 2009
Procedural Posture
Civil – Dust Diseases Tribunal Application / Application for Leave to Amend Statement of Claim to Join Amaca as Defendant and Opposition to Amendment; Interlocutory Decision on Joinder and Abuse of Process
Outcome
Leave to amend Statement of Claim granted; costs in the cause.
Legal Topics
['asbestos Litigation' 'abuse of Process' 'application to Amend Pleadings' 'joinder of Parties' 'product Liability' 'limitation of Actions']
['tort Law' 'civil Procedure'] ['asbestos Litigation' 'abuse of Process' 'application to Amend Pleadings' 'joinder of Parties' 'product Liability' 'limitation of Actions']

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Procedural Posture

Civil – Dust Diseases Tribunal Application / Application for Leave to Amend Statement of Claim to Join Amaca as Defendant and Opposition to Amendment; Interlocutory Decision on Joinder and Abuse of Process

Legal Issues

  1. 1 ['Whether leave should be granted to amend the Statement of Claim to join Amaca as a defendant for the period 1942–1990' 'Whether the joinder of Amaca as defendant for the earlier period (1942–1975) constitutes an abuse of process due to effluxion of time and unavailability of evidentiary material']

Ratio Decidendi

Leave to amend the Statement of Claim to join Amaca as defendant is granted because, although evidence is limited for the period 1942–1975, it is possible that Mr Evans can advance a viable case if expert evidence establishes that any exposure to Amaca’s asbestos products materially contributed to his diseases or that injury is indivisible. The lack of direct evidence does not necessarily preclude a fair trial, and the plaintiff should be permitted to attempt to establish causation, possibly by evidence of market share and expert opinion; this approach is not an abuse of process at the current stage.

Court Disposition

Leave to amend Statement of Claim granted; costs in the cause.

Orders

  • ['Leave to the plaintiff to file an Amended Statement of Claim in the terms of the proposed amendment annexed to the affidavit of Mr Philip John Day of 1 September 2009.' "Costs are Amaca's costs in the cause."]