CITATION: AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) -v- HANNELL [2007] WASCA 158
CORAM: MARTIN CJ
STEYTLER P McLURE JA
HEARD: 28 FEBRUARY 2007 & 1 MARCH 2007
DELIVERED : 2 AUGUST 2007
FILE NO/S: CACV 15 of 2007
BETWEEN: AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) (ACN 000 035 512)
Appellant
DAVID RICHARD HANNELL Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :LE MIERE J
Citation :HANNELL -v- AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310
File No :CIV 2412 of 2005
Catchwords:
Torts - Negligence - Non-occupational exposure to respirable asbestos fibre - Where exposure was very limited by reason of casual work on asbestos cement products - Causation - Legal principles - Whether causation established - Asbestos-related disease terms: "background exposure" and "background risk" - Whether evidential burden discharged by leading evidence displacing the plaintiff's prima facie case - Evidential burden and burden of proof distinguished - Duty of care - Duty to warn - Whether warnings and cautions were sufficient to discharge duty - Whether risk of contracting mesothelioma was foreseeable
Damages - Assessment of damages - Mesothelioma - Appeal against award for damages
Legislation:
Nil
Result:
Appeal allowed Judgment set aside Judgment entered in favour of the appellant Respondent's claim for damages dismissed
[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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AGLC
Amaca Pty Ltd v Hannell [2007] WASCA 158
Case
[2007] WASCA 158
Decision Date
CaseChat Overview and Summary
Amaca Pty Ltd appealed against a judgment that found it liable for a mesothelioma-related disease contracted by Hannell, who had worked briefly in the manufacture of asbestos cement products. The appeal was centred on whether the trial judge had correctly applied the principles of causation and foreseeability in the context of the limited exposure to asbestos that Hannell had experienced. The court was also required to determine whether the warnings and cautions given to Hannell regarding the risks of asbestos exposure were sufficient to discharge the duty of care owed to him.
The Court of Appeal held that the trial judge had erred in finding that Amaca Pty Ltd was liable for Hannell's mesothelioma. The Court found that the causation principle required a clear and direct link between the exposure to asbestos and the disease, which was not established in this case given Hannell's limited and casual exposure. Furthermore, the Court held that the warnings and cautions provided to Hannell were sufficient to discharge the duty of care owed to him, and the risk of contracting mesothelioma was not considered to be foreseeable under the circumstances. The Court also noted the distinction between the evidential burden and the burden of proof, emphasising that the plaintiff had not discharged the evidential burden to establish causation. As a result, the Court set aside the judgment of the trial judge and dismissed Hannell's claim against Amaca Pty Ltd. The Court also ordered that each party bear their own costs of the trial and the appeal.
Orders
Orders of the court
Appeal allowed
Judgment set aside
Judgment entered in favour of the appellant
Respondent's claim for damages dismissed
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
JUDGMENT OF THE COURT: By orders made on 7 September 2007, the Court allowed this appeal, set aside the judgment of the trial judge and instead ordered that the respondent's action against the appellant be dismissed. Directions were made for the exchange of written submissions in relation to the costs of the trial and the appeal. These reasons are concerned only with those costs issues. The appellant submits that the general rule, reflected in O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA) is that 'the Court will generally order that the successful party to an action or matter recover his costs' (O 66 r 1). It submits that in this case, there is no basis for departing from that general rule. The respondent acknowledges the existence of the general rule, but relies upon the modification to that general rule established by practice and authority, and expressly recognised in O 66 r 1(3), which provides:Where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs the Court may order such party to pay the costs of such issue or issues. The respondent submits that the issues that arose at trial, and on appeal, can be segregated into four substantive and discrete areas, namely:(a)foreseeability;(b)duty of care;(c)breach;(d)causation. The respondent points out that on the decision of the majority in this Court, it was successful in all of those issues other than breach. The respondent submits that, as a result of its success on three out of the four issues identified, the appropriate orders to be made in respect of costs are:(a)that each party bear their own costs of the trial and the appeal; or in the alternative(b)that the respondent pay 25% of the appellant's costs of the trial and the appeal. The power to depart from the general rule to the effect that costs follows the event and to instead adjust the costs order to be made by reference to the failure of the generally successful party on specific and particular issues within the litigation, is recognised by practice, authority and the express provisions of O 66 r 1(3). However, its application depends upon the identification of discrete and severable issues, the litigation of which has increased the costs of conducting the proceedings. Established practice in this State, and the authorities, suggest that the exercise of this power should be approached broadly, and as a matter of impression, and without an attempt at 'mathematical precision' which is likely to prove illusory - see, for example J‑Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) (1993) 46 IR 301. Accordingly, the power to adjust an order for costs by reference to particular issues upon which the generally successful party has failed, is properly exercised only where there are discrete and severable issues upon which the generally successful party has failed, and which have added to the cost of the proceedings in a significant and readily discernible way. In a case in which the generally successful party has failed on only a minor issue, which did not add materially to the cost of the conduct of the proceedings, it would not ordinarily be appropriate to depart from the general rule, unless the conduct of the generally successful party in relation to that issue had been unreasonable. In the event of unreasonableness, different considerations may apply.