Salucci v Amaca Pty Ltd [2009] NSWDDT 33

Salucci v Amaca Pty Ltd [2009] NSWDDT 33

Causation was raised before the mediator because the mediator's certificate, read as a whole, identified exposure, damages and causation as issues for trial. The defendant acted reasonably in obtaining Dr Gardiner's report, had reserved its right to amend its Reply, and the information in that report was not reasonably discoverable before the Reply was served. The defendant was therefore permitted to file a defence limited to causation, exposure and damages.

Jurisdiction
Australia
Judgment Date
16 December 2009
Procedural Posture
Notice of Motion in Dust Diseases Tribunal Proceedings for Damages for Alleged Asbestos Exposure Causing Malignant Mesothelioma / Ruling After Mediation and Before Trial on Whether Causation Could Be Raised as an Issue
Outcome
The defendant was permitted to file a defence raising causation, exposure and damages, with costs of the application and costs relating to causation awarded to the plaintiff.
Legal Topics
["mediator's Certificate" 'issues in Dispute' 'amendment of Reply or Defence' 'causation' 'reasonable Discoverability of Facts' 'malignant Mesothelioma']
['dust Diseases Tribunal Procedure' 'civil Procedure' 'asbestos Related Personal Injury' 'negligence'] ["mediator's Certificate" 'issues in Dispute' 'amendment of Reply or Defence' 'causation' 'reasonable Discoverability of Facts' 'malignant Mesothelioma']

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Procedural Posture

Notice of Motion in Dust Diseases Tribunal Proceedings for Damages for Alleged Asbestos Exposure Causing Malignant Mesothelioma / Ruling After Mediation and Before Trial on Whether Causation Could Be Raised as an Issue

Legal Issues

  1. 1 ["Whether causation was raised as an issue before the mediator and included in the mediator's certificate." "Whether cl 29 of the Dust Diseases Tribunal Regulation 2007 permitted the defendant to change the facts relied on after serving its Reply based on Dr Gardiner's report." 'Whether the defendant should be permitted to file a defence raising causation, exposure and damages.']

Ratio Decidendi

Causation was raised before the mediator because the mediator's certificate, read as a whole, identified exposure, damages and causation as issues for trial. The defendant acted reasonably in obtaining Dr Gardiner's report, had reserved its right to amend its Reply, and the information in that report was not reasonably discoverable before the Reply was served. The defendant was therefore permitted to file a defence limited to causation, exposure and damages.

Court Disposition

The defendant was permitted to file a defence raising causation, exposure and damages, with costs of the application and costs relating to causation awarded to the plaintiff.

Orders

  • ['Defendant, if so advised, to serve further report of Dr Gardiner on or before 15 January 2010.' "Defendant to serve other experts' reports and witness statements on or before 15 January 2010." 'Plaintiff to serve reports and witness statements in reply on or before 20 January 2010.' 'Liberty to apply.' 'Defendant...