Urquhart v James Hardie & Coy Pty Ltd
[1995] QDC 250
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Urquhart v James Hardie & Coy Pty Ltd[1995] QDC 250
- Add to List
Urquhart v James Hardie & Coy Pty Ltd[1995] QDC 250
Urquhart v James Hardie & Coy Pty Ltd[1995] QDC 250
DISTRICT COURT | No 253 of 1993 |
CIVIL JURISDICTION
JUDGE O'SULLIVAN
BRUCE URQUHART | Plaintiff |
and
JAMES HARDIE & COY PTY LTD | Defendant |
BRISBANE
DATE 25/07/95
ORDER
HER HONOUR: This is a summons for leave to amend the plaint by the addition of a new cause of action. The amendments are incorporated in an amended plaint. They include the addition of allegations concerning the Plaintiff's exposure to asbestos while his father worked at the Defendant's factory in Meeandah between 1970 and 1983, and the addition of breaches of various duties owed by the Defendant to the Plaintiff and to the Plaintiff's father in that period.
The application is made after the expiry of the period of limitation.
Counsel agreed that the relevant rule is Supreme Court Rule Order 31 rule 1, especially sub-rules (1), (2) and (5).
I was referred to various authorities, including Weldon v Neal (1887) 19 QB 394; Jones v Jebras & Hill (1968) QdR 13, Nielsen v Bundaberg Sugar Company Ltd (1985) 1 QdR 31, Adam v Shiavon (1987) 1 QdR 1, Brickfield Properties Ltd v Newton (1971) 1 WLR 862, Lynch v Keddell (No. 2) (1990) 1 QdR 1, Grotherr v Maritime Timbers Pty Ltd (1991) QdR 128, and Pianta v BHP (unreported - Court of Appeal - 13/2/95).
Counsel for the Applicant stressed that there were the same parties, the same cause of the medical condition, the same product, the same general duty and the same breach of duty.
He submitted that Pianta (supra) ought to be distinguished because in that case there were two separate injuries while here there is one injury, namely, cumulative exposure to asbestos and “the only material difference is that one exposure occurred during a period of employment, and one occurred outside of employment”.
I consider that the word “only” in this submission is an under-statement, and the difference is of some significance.
I accept that there are some factual differences between this case and Pianta, but I consider that Pianta is, nevertheless, of some assistance in understanding how the relevant principles from the long line of authorities ought to be applied in practice.
I consider that although there is some overlap between the causes of action, namely, exposure to asbestos, there are also substantial differences. I consider that these differences go beyond those conceded by Counsel for the Plaintiff - he conceded that there are differences in insurers, and a different period.
Counsel for the Respondent contended that the only common fact is the medical condition.
I find that the facts constituting the breaches of duty in each case are not the same or substantially the same.
I find that the facts constituting the elements of duty are not the same or substantially the same.
Counsel for the Plaintiff submitted that I ought to give weight to the fact that the necessity for the amendments was unknown to the Plaintiff until Dr McKeon gave evidence at the hearing of the s. 31 Application on 2 June 1994, when he expressed a different opinion from that expressed in his earlier report, namely, that the condition may have been caused by the exposure during his employment with the defendant, or exposure earlier when his father was an employee of the defendant, or both. I am not persuaded that this is sufficient to amount to “special” or “peculiar” circumstances. In reaching this conclusion, I have obtained some assistance from a careful perusal of the fairly lengthy decision in Grotherr (supra), in which a somewhat similar situation arose for consideration.
I find that the overall circumstances are not “special” or “peculiar” circumstances, which justify the exercise of my discretion to allow the amendment.
I accordingly refuse the application.
Those are my reasons. The formal order then will be the summons filed 13 June 1995 is dismissed.