JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	16, 17, 18 and 21 June 2010
DATE OF RULING:	21 June 2010 (revised 6 July 2010)
CASE MAY BE CITED AS:	Bernard v Seltsam Pty Ltd
MEDIUM NEUTRAL CITATION:	[2010] VSC 305

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PRACTICE AND PROCEDURE – trial by jury – negligence – cancer – alleged exposure to asbestos - no evidence of cause of plaintiff’s cancer – no evidence of plaintiff’s exposure to defendant’s asbestos products - defendant’s submission of no case to answer – verdict for defendant by direction – procedure for doing so – plaintiff self-represented – duty of judge to ensure fair trial with a jury.

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APPEARANCES:	Counsel		Solicitors
For the plaintiff		Ms Caroline Kenny SC and Ms Kathleen Foley of counsel on 17 June 2010; the plaintiff was otherwise self-represented
For the defendant	Mr R Harris		Monahan and Rowell

HIS HONOUR:

James Joseph Bernard is aged 68 years and is dying of lung cancer. His life expectancy is about two years. He worked in the building industry for over 30 years. He alleges his cancer was caused by exposure to asbestos which was manufactured and distributed by Selstam Pty Ltd.

By a writ seeking trial by judge and jury, Mr Bernard issued proceedings in negligence against Amaca Pty Ltd (formerly the James Hardie company) and Seltsam (formerly the Wonderlich company). In view of Mr Bernard’s medical condition, the court made an order for a speedy trial.

Before the trial commenced, the proceeding against Amaca was settled. Orders dismissing the claim against that company were made accordingly. The proceeding against Seltsam was not settled. By its defence, the company has admitted none of Mr Bernard’s allegations. Alternatively, it has alleged Mr Bernard is not mitigating his loss by obtaining appropriate medical treatment. Mr Bernard prefers his cancer to be treated by alternative, and not by conventional, medical therapies. For that reason, he has refused to have it removed by surgery or tested by biopsy.

Under r 47.02(1) the Supreme Court (General Civil Procedure) Rules2005, where the proceeding is commenced by writ and founded on tort, the plaintiff has a right to have it tried with a jury. That is the character of the proceeding issued by Mr Bernard.

The courts have repeatedly stressed the importance of trial by jury in civil cases based on the common law. For example, this is Jordan CJ in Commissioner for Railways v Corben:[1]

Trial by jury is an institution of great value. It enables the direct participation by a large body of citizens in the important branch of the business of government which is constituted by the administration of justice. And it confers upon litigants the advantage of the knowledge and experience possessed by their fellow citizens of the affairs of ordinary workaday life, which are of great…

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.

Continue reading Bernard v Seltsam Pty Ltd

Details

AGLC: Bernard v Seltsam Pty Ltd [2010] VSC 305
Case: [2010] VSC 305
Decision Date: 21 June 2010 (revised 6 July 2010)

CaseChat Overview and Summary

In the Federal Court of Australia, Bernard sued Seltsam Pty Ltd for alleged negligence in relation to exposure to asbestos. The plaintiff claimed that he had developed cancer as a result of exposure to the defendant's asbestos products, but the defendant denied any liability, stating that there was no evidence to support the plaintiff's claims. The defendant submitted that there was no case to answer and requested a verdict by direction. The plaintiff was self-represented.

The court was required to determine whether the plaintiff's claims were supported by evidence and whether the procedure for submitting a no case to answer submission was followed correctly. The court also had to consider the duty of the judge to ensure a fair trial for a self-represented party.

The court held that the plaintiff's claims were not supported by any evidence, and the plaintiff had not established a causal link between his cancer and the defendant's asbestos products. The court found that the procedure for submitting a no case to answer submission was followed correctly, and the verdict by direction was appropriate. The court also noted that the judge had fulfilled his duty to ensure a fair trial for the self-represented plaintiff.

The court dismissed the plaintiff's claims and ordered the plaintiff to pay the defendant's costs.

Orders