BI (Contracting) Pty Ltd v The Public Trustee Of South Australia and ANORCSR Limited v The Public Trustee Of South Australia and ANOR

BI (Contracting) Pty Ltd and CSR Limited (now James Hardie & Co Pty Ltd) appealed against a decision of the Supreme Court of South Australia concerning claims brought by the Public Trustee of South Australia, as administrator of the estates of two deceased individuals, Mr. and Mrs. K. The dispute arose from the deaths of Mr. and Mrs. K due to mesothelioma, a dust-related condition, which the Public Trustee alleged was caused by exposure to asbestos dust during their lifetimes. The appeals were heard by the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the appellants owed a duty of care to Mr. and Mrs. K, whether that duty had been breached, and if so, how liability should be apportioned between the appellants and potentially other tortfeasors. Specifically, the court had to consider the foreseeability of the risk of contracting a dust-related disease from exposure to asbestos and whether the appellants' conduct constituted a failure to take reasonable precautions, including a failure to warn. The court also had to determine the principles for apportioning liability between tortfeasors based on their respective moral culpability or blameworthiness.

The Court of Appeal applied the principles of negligence, including the concept of foreseeability as established in cases such as *CSR v Wren*. The court reasoned that it was not necessary for the precise nature of the injury suffered to be foreseen, but rather that the general risk of harm from exposure to asbestos dust was foreseeable. The court found that the appellants had breached their duty of care by failing to implement adequate safety measures and provide sufficient warnings regarding the dangers of asbestos exposure. In apportioning liability, the court considered the degree of blameworthiness of each party's conduct.

Ultimately, the Court of Appeal dismissed all four appeals, upholding the decision of the Supreme Court of South Australia. The appellants were ordered to pay the costs of the appeals.