Amaca Pty Ltd v King

Case [2011] VSCA 447


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0139
AMACA PTY LTD (Under NSW Administered Winding Up) Appellant

v

ERIC KING Respondent

---

JUDGES NETTLE, ASHLEY and REDLICH JJA
WHERE HELD MELBOURNE
DATE OF HEARING 5 December 2011
DATE OF JUDGMENT 22 December 2011
MEDIUM NEUTRAL CITATION [2011] VSCA 447
JUDGMENT APPEALED FROM [2011] VSC 422 (Kyrou J)

---

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.

---

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:

  1. 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

  1. 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.

  1. 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’).

  1. 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.

  1. In January 1976, he returned to Australia and was sent to Davis Station in Antarctica where he…

Continue reading Amaca Pty Ltd v King

Sign in free to access the full text

Details
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.

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.