Amaca Pty Ltd v Moss

Case [2007] WASCA 162

AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) -v- MOSS [2007] WASCA 162



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2007] WASCA 162
THE COURT OF APPEAL (WA)
Case No:CACV:5/200728 FEBRUARY 2007 & 1 MARCH 2007
Coram:MARTIN CJ
STEYTLER P
McLURE JA		2/08/07
36Judgment Part:1 of 1
Result: Appeal allowed
Judgment set aside
Judgment entered in favour of the appellant
Respondent's claim for damages dismissed
A
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Parties:AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) (ACN 000 035 512)
DENNIS WALTER JOHN MOSS

Catchwords:
Torts
Negligence
Non-occupational exposure to respirable asbestos fibre
Whether there is any material distinction between "bystander" and "handyman" exposure
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

Case References:
Amaca Pty Ltd v Hannell [2007] WASCA 158
Bennett v Minister of Community Welfare (1992) 176 CLR 408
City of Stirling v Tremeer (2006) 32 WAR 155
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) -v- MOSS [2007] WASCA 162 CORAM : MARTIN CJ
    STEYTLER P
    McLURE JA
HEARD : 28 FEBRUARY 2007 & 1 MARCH 2007 DELIVERED : 2 AUGUST 2007 FILE NO/S : CACV 5 of 2007 BETWEEN : AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) (ACN 000 035 512)
    Appellant

    AND

    DENNIS WALTER JOHN MOSS
    Respondent


ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : LE MIERE J

Citation : MOSS -v- AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) [2006] WASC 311

File No : CIV 1089 of 2006



(Page 2)



Catchwords:

Torts - Negligence - Non-occupational exposure to respirable asbestos fibre - Whether there is any material distinction between "bystander" and "handyman" exposure - 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

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Details
AGLC
Amaca Pty Ltd v Moss [2007] WASCA 162
Case
[2007] WASCA 162
Decision Date

CaseChat Overview and Summary

In the case of Amaca Pty Ltd v Moss, the court was tasked with resolving a dispute involving non-occupational exposure to respirable asbestos fibres. The case revolved around whether there was any significant distinction between bystander and handyman exposure, particularly where the exposure was limited to casual work on asbestos cement products. The plaintiff alleged that the defendant's actions led to his development of mesothelioma, a serious asbestos-related disease.

The legal issues before the court included whether the evidential burden had been discharged by the leading evidence, whether the plaintiff's prima facie case was negated, and if the burden of proof had been adequately addressed. The court also examined whether the duty of care, including the duty to warn, had been met and if the risk of contracting mesothelioma was foreseeable. Additionally, the court assessed the causation of the disease, the terms "background exposure" and "background risk," and the adequacy of the damages awarded.

The court determined that the evidential burden had been discharged, effectively displacing the plaintiff's prima facie case. It concluded that the burden of proof had been properly managed, and the duty of care, including the duty to warn, had been fulfilled. The court found that the risk of contracting mesothelioma was not foreseeable under the circumstances presented. The causation of the disease was examined, and it was determined that the evidential burden had been met, disproving the plaintiff's case. Finally, the assessment of damages was reviewed, and the court deemed the award to be appropriate.

The orders of the court were to allow the appeal, set aside the previous judgment, and enter a new judgment in favour of the appellant, Amaca Pty Ltd. The respondent's claim for damages was dismissed.

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

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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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