Carcinoma diagnosis & exposure to asbestos history: Particulars dispute

Raviolos v Sydney Local Health District [2015] NSWSC 439 arose against a background of a CT performed following a fall. The claimant’s discharge referral provided no advice about the need to be seen by a respiratory physician in order to investigate the lesion seen on the CT: [2] – [3]. About a year later, a mass was diagnosed and treated but that treatment was not curative.

The defendant sought particulars of the statement of claim, including details of past employers, the nature of the work done and the nature and contact of any asbestos exposure. The claimant objected to providing these particulars upon the basis that they were not relevant to any current issue in the proceedings.

The court held that the defendant was not entitled to the particulars, saying at [11] and [13]:

Counsel for the defendant expressly disavowed the existence of a relevant relationship between the aetiology of ..(the)… disease and his prognosis in terms of life expectancy. It seems clear, therefore, that the defendant does not wish to propound an argument that the cause of .. (the)… lung cancer reliably informs the likely progress of his disease. It is in those circumstances irrelevant whether the malignancy is the result of work related exposure to asbestos or to cigarette smoking or to any other possible contributing cause or causes.

The position may be different if the defendant wished to contend that there was scientific or epidemiological support for the proposition that asbestos related cancer offered a better or different prospect in terms of life expectancy than cancer apparently caused in some other way. If cancer apparently caused by asbestos could be shown, for example, to have a statistically better chance of response to surgery or adjuvant therapy, or was known to be demonstrably slower to progress than cancers caused in other ways, then an alternative approach might be called for. In such a case the defendant may be able successfully to argue that ..(the claimants)… prospects were better than those about which his own medical specialists have prognosticated. I am not aware of any such evidence generally and the defendant has not hinted at its existence in particular.