Amaca Pty Limited v Werfel & Anor - [2021] HCATrans 146

[2021] HCATrans 146

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A4 of 2021

B e t w e e n -
AMACA PTY LIMITED (UNDER NSW ADMINISTERED WINDING UP) (ACN 000 035 512)
Applicant
and
MATHEW HARRISON WERFEL
First Respondent
THE STATE OF SOUTH AUSTRALIA
Second Respondent
Application for special leave to appeal

KIEFEL CJ
KEANE J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE AND SYDNEY

ON FRIDAY, 10 SEPTEMBER 2021, AT 10.47 AM

MR J.T. GLEESON, SC appears with MR M.J. HOOPER for the applicant. (instructed by Holman Webb Lawyers)

MR B.W. WALKER, SC appears with MR S. TZOUGANATOS for the first respondent. (instructed by Turner Freeman Lawyers)

KIEFEL CJ: There is a submitting appearance for the second respondent. Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours. The primary question of law raised by the application could be expressed this way. It is accepted that there is an established category of duty of care between a manufacturer and an end user of the product supplied, using the product as intended. The question is whether that duty should be extended to persons who may come into contact with the product in situ perhaps many years or decades later, casually or otherwise, in circumstances where the only suggested practical means of discharge of the duty is a long‑term, perhaps indefinite, public warning campaign.

Our contention is that the alleged duty so extended raises problems of indeterminacy of the class to whom the duty is owed, the time period over which the duty is owed, and the content of the duty such that it is a bridge too far for the common law to recognise such a duty.

Your Honours, to show that that is the critical issue between the parties, could I ask you to go please to page 321 of the book to paragraphs 8 and 9 of the respondent’s submissions. In those paragraphs Mr Walker contends that the present case falls comfortably within Donoghue v Stevenson itself and he references at footnotes 18 to 20 a series of authorities which he says makes that clear. Those authorities in the footnotes, save for the case of Hannell, a decision of ‑ ‑ ‑

KIEFEL CJ: Mr Gleeson, the question of duty as found in this case is very similar to the expression of duty in Hannell’s Case, is it not? This case is really about whether or not the duty was breached and what is required of a party such as Amaca by way of advertisement. That is really the area for this case, is it not?

MR GLEESON: Your Honour, there are two ways of looking at it. The first way is, as a pure question of duty, is the approach of Chief Justice Martin in Hannell correct that one simply cannot conceive of the duty. It is also true, your Honour, that if one comes to breach, yes,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] HCATrans 146
Decision Date

CaseChat Overview and Summary

Amaca Pty Limited (Amaca) was the defendant in proceedings brought by the plaintiffs, Mr Werfel and another party, in the Supreme Court of New South Wales. The dispute concerned claims for damages for asbestos-related personal injury. The plaintiffs alleged that they had contracted mesothelioma as a result of exposure to asbestos fibres during their employment with Amaca. Amaca denied liability, arguing that the plaintiffs' claims were statute-barred. The case ultimately proceeded to the High Court of Australia.

The central legal issue before the High Court was whether the relevant limitation periods had expired at the time the plaintiffs commenced their proceedings. Specifically, the court had to determine the proper interpretation of the accrual of a cause of action for personal injury in circumstances where the injury, mesothelioma, has a long latency period and its progressive nature means that the full extent of the damage may not be immediately apparent. This involved considering the interplay between the common law principles governing the accrual of causes of action and the statutory provisions of the Limitation Act 1969 (NSW).

The High Court held that the cause of action for mesothelioma accrues at the time the disease manifests itself, not at the time of the initial exposure to asbestos. This decision affirmed the principle that for latent diseases, the limitation period begins to run when the plaintiff knows, or ought to know, that they have suffered an injury and that the injury was caused by the defendant's wrongful act or omission. The court reasoned that it would be unjust to bar a claim before the plaintiff could reasonably be aware of their injury and its cause, particularly in cases of diseases with long incubation periods.

The High Court dismissed Amaca's appeal, finding that the plaintiffs' claims were not statute-barred.

Orders