Bale v Seltsam Pty Ltd - [1995] QSC 306

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane No. 785 of 1995

Before the Honourable Justice White

[Bale v. Seltsam Pty Ltd]

BETWEEN:

JOYCE BARBARA BALE
(Plaintiff)

AND:

SELTSAM PTY LTD
(Defendant)

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 14/12/1995

CATCHWORDS PERSONAL injury - pleural mesothelioma - wife of asbestos worker 1962-5 - exposure to dust on clothes, car - foreseeability of injury - state of knowledge at relevant period.

Counsel:Mr R Stenson for plaintiff.
Mr S Doyle SC for defendant.

Solicitors:Nall Payne Craswell for plaintiff.
Ebsworth & Ebsworth for defendant.

Hearing dates: 16, 17, 18, 26 October 1995

IN THE SUPREME COURT

OF QUEENSLAND

No. 785 of 1995

BETWEEN:

JOYCE BARBARA BALE
(Plaintiff)

AND:

SELTSAM PTY LTD
(Defendant)

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 14/12/1995

The plaintiff, Mrs Bale, was diagnosed in February 1995 as suffering from malignant pleural mesothelioma with a very limited life expectancy. She issued a writ against her husband's former employers, formerly Wunderlich Limited, manufacturers of asbestos cement products, on 9 May 1995 seeking damages for negligence.
           In brief Mrs Bale alleges that she contracted malignant mesothelioma as a consequence of her personal and domestic contact with her husband during the years 1962-5 when he was employed by Wunderlichs in its plant at Gaythorne, a suburb of Brisbane. She alleges that it was reasonably foreseeable that unless the defendant took certain workplace precautions she, as a member of the family of one of its workers exposed to asbestos fibres, was at risk to her health.
The statement of claim was delivered on 30 May 1995. Requests for particulars were made and given and the defence was delivered on 29 June 1995. On 13 September 1995 Dowsett J extended the limitation period pursuant to s. 31 of the Limitation of Actions Act 1974 to 27 February 1996 and made other interlocutory orders. The action was entered for trial on 10 October 1995 and was heard on 16 October and following. A commendable degree of co-operation was demonstrated between counsel and their instructing solicitors both in being ready for trial quickly and in agreeing on a number of matters.
           Quantum has been agreed between the parties in the sum of $94,916.10.
Facts
           Mrs Bale was born on 18 September 1939 and is 56 years of age. She married her husband, Henry Bale, in 1957. They have two daughters born in 1959 and 1963 respectively. When they married Mr Bale did National Service followed by a period at Brandon Timbers before commencing work at Wunderlichs at the Gaythorne factory. Since leaving the employ of the defendant he has worked for Olympic Tyre and Rubber and has generally engaged in driving work, particularly trucks. Mrs Bale had various jobs prior to the birth of her children including with a printer. There was no evidence at the trial as to her employment since.
           Mr and Mrs Bale first lived in a flat in Hamilton then in a house at Mitchelton and then moved…

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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Details

Case: [1995] QSC 306
Decision Date: 14 December 1995

CaseChat Overview and Summary

The plaintiff, Mrs Bale, commenced proceedings against her husband's former employer, Seltsam Pty Ltd, for damages for negligence on the basis that she contracted malignant pleural mesothelioma as a result of her domestic contact with her husband, who was exposed to asbestos fibres at work. Mrs Bale alleged that the defendant should have taken workplace precautions to prevent her exposure to asbestos fibres and dust, as it was reasonably foreseeable that unless such precautions were taken she would be at risk to her health. The court considered the legal issues of whether the defendant could foresee or should have reasonably foreseen that a person in Mrs Bale's position would suffer personal injury from the defendant's operations, if some personal injury to Mrs Bale was reasonably foreseeable, was malignant mesothelioma of a class or kind of injury which was reasonably foreseeable, and if it was, did the defendant fall below the standard of a reasonable manufacturer in its response to the perceived risk. The court found that between 1962 and August 1965, the period of Mr Bale's employment with the defendant, it was not reasonably foreseeable that a person in Mrs Bale's position would sustain personal injury from the way in which the defendant conducted its business. The court also found that if Mrs Bale was a member of the class whom the defendant ought to have foreseen as being at risk of harm from the way in which it conducted its business, the contraction of mesothelioma was harm of a class or kind which was reasonably foreseeable. However, the court found that the defendant was not entitled to take the risk of Mrs Bale contracting pleural plaques or any other physical injury, and that by doing so it would have fallen below a reasonable standard of care for a manufacturer in the period under consideration. Therefore, the plaintiff's action against the defendant was dismissed.

Orders