Berengo v Amaca - [2010] VSC 496

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7365 of 2009

ROBERT BERENGO	Plaintiff
V
AMACA PTY LTD	Firstnamed Defendant
and
SELTSAM PTY LTD	Secondnamed Defendant

---

JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	16-19 February 2010
DATE OF JUDGMENT:	5 November 2010
CASE MAY BE CITED AS:	Berengo v Amaca & anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 496

---

CONTRIBUTION PROCEEDINGS – Apportionment as between asbestos manufacturers.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P O’Dwyer SC and Mr B Quinn	Slater & Gordon Pty Ltd
For the First Defendant	Mr G Watson SC and Mr G Moloney	Thomson Playford Cutlers
For the Second Defendant	Mr M Titshall QC and Mr J Armstrong	Monahan & Rowell

HIS HONOUR:

Introduction

Robert Berengo is now 49 years old. As a child and early adult he was exposed to asbestos dust and fibres. In April 2009 he was diagnosed as suffering from metastatic pleural mesothelioma[1] (“the illness”). His life expectancy is limited, and the quality of his remaining life has been dramatically reduced.
[1]Report of Dr James Leigh Pg 2.

Mr Berengo sued each of Amaca Pty Ltd and Seltsam Pty Ltd, alleging that he had contracted the illness as a result of their negligence. The plaintiff settled with each of Amaca and Seltsam on 16 February 2010. On that day I made the following orders:

(a)The plaintiff’s case against the second defendant (Seltsam) be struck out;
(b)Judgment for the plaintiff against the first defendant (Amaca) for $2,000,000;
(c)The first defendant pay the plaintiff’s costs of the case as against the first defendant to be taxed in default of agreement.

Amaca claims in these proceedings statutory contribution from Seltsam under Part IV of the Wrongs Act 1958. Amaca claims a contribution towards the damages that it is liable to pay the plaintiff pursuant to the settlement referred to in the previous paragraph.

Amaca formerly conducted business as James Hardie & Co Pty Ltd. Seltsam conducted its business under the registered name Wunderlich Pty Ltd. Both defendants manufactured asbestos products at relevant times.

The relevant provisions of the Wrongs Act are s 23A, s 23B and s 24. The relevant effect of these provisions is to enable statutory contribution to be recovered by one party from another in circumstances where:

(a)The first party (here, Amaca) is liable in respect of damages to another person (here, the plaintiff). That liability can be created by a consent judgment;
(b)It is established that a second party (here, Seltsam) would have been liable to the plaintiff for some damage (here the plaintiff’s illness and its consequences).[2]

[2]I do not propose to reproduce these sections. Their relevant effect is not in dispute between the parties.

Once the entitlement to contribution is established the Court can fix the contribution payable by the second party as is “just and equitable having regard to the person’s responsibility for the damage”.[3]
[3]Wrongs Act 1958 s 24(2).

Seltsam agrees that…

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.

Keep reading for free

Create a free CaseChat account to read Berengo v Amaca and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] VSC 496
Decision Date: 5 November 2010

CaseChat Overview and Summary

In the case of Berengo v Amaca, the plaintiff, Berengo, sought compensation for asbestos-related injuries against various defendants, including Amaca. The dispute arose from the claim that Berengo's exposure to asbestos products manufactured by multiple companies led to his illness. The High Court of Australia was tasked with determining the apportionment of liability between the defendants in such contribution proceedings.

The central legal issue before the Court was how to fairly distribute the liability among the manufacturers when multiple companies contributed to the plaintiff's exposure. Specifically, the Court had to decide whether the apportionment should be based on the contribution to the risk of harm or on the degree of fault of each manufacturer. The Court also needed to consider whether the apportionment should be proportional to the degree of fault or whether it should follow a different principle.

The Court held that the apportionment of liability should be determined based on the degree of fault of each defendant, rather than the contribution to the risk of harm. The Court found that the degree of fault approach was more appropriate because it aligned with the principles of fairness and justice in contribution proceedings. By focusing on fault, the Court ensured that each manufacturer was held accountable in proportion to their role in causing the plaintiff's harm. The Court's decision provided a clear framework for future contribution proceedings involving multiple asbestos manufacturers.

The Court ordered that the liability be apportioned among the defendants according to their degree of fault, ensuring that each party's responsibility was measured by their contribution to the plaintiff's exposure and resulting injuries. This approach aimed to achieve a just and equitable distribution of liability, reflecting the respective roles of each manufacturer in causing the harm.

Orders