Amaca Pty Ltd v AB & P Constructions Pty Ltd

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NEW SOUTH WALES COURT OF APPEAL

CITATION:      Amaca Pty Ltd (under NSW External Administration) v A B & P Constructions Pty Ltd [2007]  NSWCA 220

FILE NUMBER(S):
40412/06

HEARING DATE(S):               18 June 2007

JUDGMENT DATE: 29 August 2007

PARTIES:
Amaca Pty Ltd (under NSW External Administration) - Appellant
A B & P Constructions Pty Ltd - Respondent

JUDGMENT OF:       Giles JA Ipp JA Basten JA   

LOWER COURT JURISDICTION: Dust Diseases Tribunal, NSW

LOWER COURT FILE NUMBER(S):          DDT 395/2004/1

LOWER COURT JUDICIAL OFFICER:     Duck J

LOWER COURT DATE OF DECISION:    9 June 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
(Re Lorizio) AB & P Constructions Pty Ltd v Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) [2006] NSWDDT 19

COUNSEL:
G M Watson SC & J C Sheller - Appellant
J McIntyre SC & J L Sharpe - Respondent

SOLICITORS:
Phillips Fox Lawyers - Appellant
Thompson Cooper Lawyers - Respondent

CATCHWORDS:
Negligence - manufacture of asbestos-based product - duty of care owed to consumers - whether error of law in formulation of duty of care - content of duty of care - no error - if had been error, would have been error of fact - whether error of law in determining breach - no failure properly to evaluate relevant factors - whether error of law in finding causation - causation not relevantly in issue at trial - was evidence on which causation could be found.

LEGISLATION CITED:
Dust Diseases Tribunal Act 1989, s 32(1)

CASES CITED:
Anderson v The City of Enfield (1983) 34 SASR 472;
Brodie v Singleton Shire Council (2001) 206 CLR 512;
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 468;
Commissioner of Corrective Services v Walker [2007] NSWCA 213;
Donoghue v Stevenson [1932] AC 562;
Dovuro Pty Ltd v Wilkins (2001) 182 ALR 481;
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540;
Grant v Australian Knitting Mills Ltd (1933) 50 CLR 387 (HC);
Great Lakes Shire Council v Dederer (2006) Aust Torts Reports 81-860; [2006] NSWCA 101;
Jones v Bartlett (2000) 205 CLR 166;
Leichhardt Municipal Council v Montgomery (2007) 81 ALJR 687;
McPhersons Ltd v Eaton (2005) 65 NSWLR 187;
Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254;
Nagle v Rottnest Island Authority (1993) 177 CLR 423;
Neindorf v Junkovic (2005) ALJR 341, (2005) 222 ALR 631;
Norton Australia Pty Ltd v Streets Ice Cream Pty Ltd (1968) 120 CLR 635;
Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn v Habda (2005) 79 ALJR 1195;
Sakoua v Williams (2005) 64 NSWLR 588;
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208;
Shellharbour City Council v Rigby [2006] NSWCA 308; (2006) 150 LGERA 11;
Skulander v Willoughby City Council [2007] NSWCA 116;
Sullivan v Moody (2001) 207 CLR 562;
Swain v Waverley Municipal Council (2005) 220 CLR 517;
Temora Shire Council…

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Details
Case
[2007] NSWCA 220
Decision Date

CaseChat Overview and Summary

In *Amaca Pty Ltd v AB & P Constructions Pty Ltd*, the appeal concerned a worker, Mr Antonio Lorizio, who alleged negligence against the appellant, Amaca Pty Ltd, for exposure to asbestos-based building products manufactured by the appellant. The worker claimed that Amaca owed him a duty of care to warn of the risks associated with the use of these products, that there was a breach of this duty, a causal connection between any failure to warn and his condition, and sought to establish the extent of contribution. The appeal was heard by Giles JA, Ipp JA, and Basten JA in the Court of Appeal of New South Wales.

The primary legal issues before the court were whether the trial judge had made an error of law in formulating the duty of care owed by the appellant to the worker, specifically concerning the requirement to warn of the risks in using the building products. The court also considered whether there was an error of law in determining whether the appellant had breached any such duty, and whether there was an error of law in finding a causal connection between any failure to warn and the worker's condition.

The Court of Appeal found no error of law in the trial judge's formulation of the duty of care. The judges reasoned that if there had been an error in this regard, it would have been an error of fact, not law. Similarly, the court determined that there was no failure to properly evaluate the relevant factors in finding a breach of duty. Furthermore, the court held that causation was not a relevant issue that needed to be determined at trial, as there was sufficient evidence on which causation could have been found.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

The appeal challenges that the appellant owed to the worker a duty of care requiring that it warn of the risks in the use of the building products; breach of any duty; causal connection between any failure to warn and the worker’s condition; and the extent of contribution. Facts The worker was Mr Antonio Lorizio. He began his employment with the respondent in about January 1980, at the age of 16. He started as an apprentice carpenter, and over the years completed his apprenticeship and qualified as a carpenter and joiner and undertook further studies which resulted in him obtaining a Clerk of Works certificate. He remained employed by the respondent until mid-1998, when he left and became a sub-contractor on his own account. The principal of the respondent was Mr Nino Restuccia. Mr Lorizio described Mr Restuccia as “my supervisor”, and Mr Restuccia said that Mr Lorizio generally worked with him or in his presence. The respondent’s building work was both renovations/extensions and building new houses, mainly the former but 10 to 20 per cent the latter. Building a new house usually began with demolition of an existing house. The demolition was sometimes of an old fibro (asbestos cement) house, which was done with hammers or sledge hammers and was dusty at times. Renovations and extensions also involved work with old fibro by demolition or by cutting and joining, and for cutting the old fibro an angle grinder was used. Building a new house and renovations/extensions could involve new asbestos cement products. The appellant’s products used by Mr Lorizio were a compressed asbestos cement sheeting used as flooring in wet areas and asbestos cement wall claddings known as Villaboard, Hardiflex, Hardiplank and Hardiplank Woodgrain (“the products”). The products were in sheets which had to be cut to size and drilled for fixing, depending on the job and the method of fixing. The flooring was cut with an angle grinder or a power saw with a special abrasive disc. The wall cladding was cut with fibro cutters, an angle grinder or a power saw, depending on the product. Cutting the products with an angle grinder or a power saw released respirable asbestos fibres into the air. Mr Lorizio said that between 1980 and 1998 about 10 per cent of his work was work with old fibro, either demolition or cutting and joining. According to Mr Restuccia a lesser percentage of work was with old fibro. The judge said, correctly, that measurement of such a thing could not be undertaken, and that it was enough that on any account demolition work (in which I think he included all work with old fibro) did not involve a great deal of Mr Lorizio’s time. Mr Lorizio said that in the four to five years from 1980 about 20 per cent of his working time was with new asbestos cement products. Mr Restuccia’s estimate was the same. The products were reconstituted at different times during the 1980’s so as not to contain asbestos, and Mr Restuccia said that the asbestos cement products were used until about 1985. Mr Lorizio had about five years’ exposure to asbestos dust and fibres from the products.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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