NEGLIGENCE – Occupier’s liability – Asbestos cement sheet manufacturing plant – Duty of care – Known risk of asbestos dust causing mesothelioma – Whether magnitude of risk sufficient to require occupier to take reasonable care to protect occasional visitor from risk – Jury directions – Whether judge erred in directions as to existence and scope of relevant duty – Breach – Causation – Distinction between risk and causation – Motion for judgment non obstante veredicto – Whether judge erred in dismissing application – Whether sufficient evidence of causation to support verdict – Damages – Pain and suffering – Whether amount awarded by jury excessive – Awards previously made in like cases – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr G Watson SC and Mr G J Maloney
Thomsons Lawyers
For the Respondent
Mr R J Stanley QC and Mr P Over
Maurice Blackburn
NETTLE JA
ASHLEY JA REDLICH JA:
This is an appeal against a judgment given in favour of the respondent for damages for personal injuries in the sum of $1,150,000. It was given following an eight day trial before a judge and jury of six members in the Common Law Division. The jury returned a unanimous verdict in favour of the respondent, to the effect that the appellant had by its negligence caused the respondent to suffer mesothelioma as a result of his exposure to asbestos dust and fibres at the appellant’s factory at Welshpool, Western Australia, in 1972.
The facts of the matter
The respondent is a married man, who at the time of trial was 62 years of age. He was born and raised in Subiaco, Western Australia. He left school after completing his leaving certificate and later qualified as a fitter and machinist.
In or about January 1972, he was employed by Sawyers Engineering at premises in Bentley, which is a suburb of Perth. He worked there, based in the machine shop, for a short period of approximately six months until in or about August 1972. Sawyers Engineering was in the business of steel fabrication and performed work for the appellant, then known as James Hardie & Coy Pty Ltd (‘Hardie’).
After leaving Sawyers Engineering, he worked successively as a machinist for a number of different employers located in Welshpool; then, from February 1974, as an instructor at the Outward Bound Sea School in Wales in the United Kingdom; then as a machinist in Durban in South Africa; and then for another period as an instructor at the Outward Bound Sea School in Wales.
In January 1976, he returned to Australia and was sent to Davis Station in Antarctica where he…
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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AGLC
Amaca Pty Ltd v King [2011] VSCA 447
Case
[2011] VSCA 447
Decision Date
CaseChat Overview and Summary
Amaca Pty Ltd, a company involved in the manufacture of asbestos cement sheets, was sued by Mr King, a former employee who had developed mesothelioma. The case came before the court to determine whether Amaca Pty Ltd owed a duty of care to Mr King, given the known risk of asbestos dust causing mesothelioma, and whether the company had breached that duty, leading to Mr King's illness. Additionally, the court had to consider whether the judge's directions to the jury about the duty of care and the scope of the relevant duty were appropriate. The case also addressed whether there was sufficient evidence to establish causation between Amaca Pty Ltd's actions and Mr King's illness, and whether the damages awarded for pain and suffering were excessive.
The legal issues before the court included the determination of the occupier's liability, the existence and scope of a duty of care owed by Amaca Pty Ltd to Mr King, and whether the company breached that duty. The court was required to consider the distinction between the risk of harm and the causation of harm, and whether the judge had correctly directed the jury on these points. Furthermore, the court examined the sufficiency of the evidence to support the jury's verdict on causation and the reasonableness of the damages awarded.
The court found that Amaca Pty Ltd did owe a duty of care to Mr King, as an occasional visitor, to take reasonable steps to protect him from the known risk of asbestos dust. The judge's directions to the jury were deemed appropriate, and the dismissal of the motion for judgment non obstante veredicto was upheld as there was sufficient evidence of causation. The damages awarded for pain and suffering were not considered excessive when compared to awards in similar cases. The appeal was dismissed, and the verdict and damages were upheld.
No further orders were made by the court, affirming the jury's findings and the quantum of damages awarded to Mr King.