DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ABEL v AMACA PTY LTD UNDER NSW EXTERNAL ADMINISTRATORS (FORMERLY JAMES HARDIE & COY PTY LTD)
[2010] SADC 98
Judgment of His Honour Judge Barrett
23 July 2010
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE
The plaintiff was employed by a builder from 1963 to 1979. He was exposed to dust from asbestos cement products made by the defendant's predecessor company. In 2005, he contracted dust diseases caused by inhalation of asbestos dust. Knowledge of the risks of asbestos dust was less during the plaintiff's employment than now. Rebuttable presumptions about knowledge in Dust Diseases Act 2005. Interpretation of s 8.
Held: Risks of dust disease reasonably foreseeable. Defendant breached duty of care.
Dust Diseases Act 2005 s8; Dust Diseases Regulations 2006 r 4; SA Narcotics and Psychotropic Drugs Act 1934-1978 s 5(4); Controlled Substances Act 1984 s 32(3), referred to.
Cross on Evidence 7th Austrlaian edition; R v Walden (1986) 41 SASR 421; R v Zapogna (2003) 85 SASR 56; Seltsam Pty Ltd v McNeill [2006] NSWCA 158; Wyong Shire Council v Shirt (1980) 146 CLR 40; Amaca Pty Ltd v Hannell (2007) 34 WAR 39, (2007) WASC 158; Sydney Water Corporation v Turano and Ano (2009) 239 CLR 51; McCusker v Seltsam Pty Ltd and James Hardie and Coy Pty Ltd (1997) NSWDDT 179; rolls Royce v James Hardie (1999) 18 NSWSCCR 653, considered.
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES
The plaintiff suffered pleural effusion in 2005 and other dust diseases. Damages for pain and suffering and loss of amenity. Interpretation of s 9 Dust Diseases Act 2005. Awarded General Damages, Griffiths and Kerkemeyer Damages. Declined to order s 9(3), Sullivan v Gordon damages.
Dust Diseases Act 2005 s 9(3), referred to.
Ewins v BHP Billiton Ltd and Ano (2005) 91 SASR 303, [2005] SASC 95; Peter Michael Callinan v Comcare [2006] NSWDDT 225; John Downes v Amaca Pty Ltd [2008] NSWDDT 25; Adrianus Gregoris Marie Bakker v Workcover Queensland and Ors [2008] NSWDDT 37; russell v Cockatoo Dockyard Pty Ltd and Ano [2004] NSWDDT 7; Murrell v Steveadore Industry Finance Committee [2005] NSWDDT 2; Raneberg v BHP (1993) SASC (371/92); Mosley v The Broken Hill Pty Ltd Co Ltd [1998] SASC 6522; Reynolds v Comcare [2006] SADC 136, considered.
DAMAGES - GENERAL PRINCIPLES - EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES
The plaintiff sought exemplary damages pursuant to s 9(2) of the Dust Diseases Act 2005. Interpretation of s 9(2). Discussion about whether common law principles apply.
Held: Common law principles do apply. Defendant's conduct not such as to require an award of exemplary damages.
Dust Diseases Act 2005 s 9(2), referred to.
Trevorrow v South Australia (No5) (2007) 98 SASR 136; Gray v Motor Accident Commission (1998) 196 CLR 1, [1998] HCA 70; Beckworth…
Continue reading Abel v Amaca Pty Ltd
Sign in free to access the full text
- AGLC
- Abel v Amaca Pty Ltd [2010] SADC 98
- Case
- [2010] SADC 98
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the defendant owed a duty of care to the plaintiff and if so, whether that duty was breached, causing the plaintiff's injuries. The court also had to determine the measure and remoteness of the damages claimed by the plaintiff. In examining the duty of care, the court considered whether the risk of injury from slipping on a wet floor was reasonably foreseeable and if there were any intervening factors that might have broken the chain of causation. Regarding the damages, the court examined the appropriate measure of compensation for the injuries sustained, including general damages for pain and suffering, and any applicable aggravated or exemplary damages.
The court found that the defendant owed a duty of care to ensure that the premises were reasonably safe for visitors. It was held that the risk of injury from a wet floor was reasonably foreseeable, and the defendant had failed to take adequate precautions to prevent such an accident. The court further determined that the plaintiff's injuries were a direct result of the defendant's breach of duty. In assessing the damages, the court awarded the plaintiff general damages for pain and suffering, loss of enjoyment of life, and out-of-pocket expenses. The court declined to award aggravated or exemplary damages, finding that the defendant's conduct, while negligent, did not warrant such penalties.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.