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Booth v Amaca Pty Ltd

Booth v Amaca Pty Ltd

Case [2010] NSWDDT 8 10 May 2010

Negligence

Causation

Dust Diseases Tribunal

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Dust Diseases Tribunal

of New South Wales

CITATION: John William Booth v Amaca Pty Limited and Amaba Pty Limited [2010] NSWDDT 8

PARTIES: John William Booth (plaintiff)
Amaca Pty Limited (first defendant)
Amaba Pty Limited (second defendant)

MATTER NUMBER(S): 8212 of 2008

JUDGMENT OF: Curtis J at 1

CATCHWORDS: DUST DISEASES TRIBUNAL - Negligence :- brake mechanics - foreseeability - causation - deduction of Dust Diseases Board payments from damages

LEGISLATION CITED: s25B Dust Diseases Tribunal Act 1989
Workers Compensation (Dust Diseases) Act 1942
Workers Compensation Act 1987

CASES CITED: HG v The Queen (1999) 197 CLR 414
Jones v Dunkel (1958 -1959) 101 CLR 298
EMI (Australia) Ltd v Bes [1970] 2 NSWLR 238
E.M. Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434
Rose v Abbey Orchard Property Investments Pty Limited (1987) Aust.Torts Report 80-121
James Hardie and Coy Pty Limited v Roberts [1999] NSWCA 314
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Amaca Pty Ltd v Ellis [2010] HCA 5
Workers Compensation (Dust Diseases) Board of New South Wales v Smith, Monro and Seymour [2010] NSWCA 19
Seltsam Pty Ltd v McNeill [2006] NSWCA 158
Lo Presti v Ford Motor Company of Australia Ltd [No 2] [2008] WASC 12
NSW Sugar Milling Cooperative Limited v Manning (1998) 44 NSWLR 442
Julia Farr Services Inc v Hayes [2003] NSWCA 37
Bendix Mintex v Barnes (1997) 42 NSWLR 307

DATES OF HEARING: 22, 23, 25 and 26 February 2010; 1, 2 3 4 and 5 March 2010 and 6 May 2010

DATE OF JUDGMENT:
10 May 2010

LEGAL REPRESENTATIVES:
Mr P C B Semmler QC with Mr S Tzouganatos instructed by Turner Freeman appeared for the plaintiff
Mr G M Watson SC with Mr J C Sheller instructed by Holman Webb Brisbane appeared for Amaca Pty Limited
Mr G M Watson SC instructed by DLA Phillips Fox appeared for Amaba Pty Limited

JUDGMENT:

Dust Diseases Tribunal of New South Wales

Matter Number 8212 of 2008

John William Booth

Amaca Pty Limited

and

Amaba Pty Limited

10 May 2010

CURTIS J

JUDGMENT

1. The plaintiff, Mr Booth, has contracted malignant pleural mesothelioma as a result of asbestos inhalation. With the exception of three years between 1969 and 1971, Mr Booth worked between 1953 and 1983 as a motor mechanic.

2. In the course of this work Mr Booth regularly liberated asbestos dust from Hardie-Bestos and Hardie-Ferodo brake linings manufactured by Amaca Pty Limited (Amaca) between 1953 and 1962, and thereafter by Amaba Pty Limited (Amaba).

3. Mr Booth asserts that the asbestos fibres released from these products materially contributed to the contraction of his disease and claims damages from each of them.

4. The defendants each contend that Mr Booth's mesothelioma did not result from asbestos fibres emanating from its product, and that if it did, because the injury was not reasonably foreseeable, they owed no duty to Mr Booth.

Mr Booth's Exposure to Asbestos

Domestic

5. In 1943, when Mr Booth was about eight years…

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 Booth v Amaca Pty Ltd

Details

AGLC: Booth v Amaca Pty Ltd [2010] NSWDDT 8
Case: [2010] NSWDDT 8
Decision Date: 10 May 2010

CaseChat Overview and Summary

In the case of Booth v Amaca Pty Ltd, the plaintiff, Booth, brought proceedings against his former employer, Amaca Pty Ltd, alleging that he contracted a dust-related disease while working as a brake mechanic. Booth sought damages for negligence, arguing that his employer had failed to provide a safe working environment and adequate protective equipment. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the employer owed a duty of care to the plaintiff, whether that duty was breached, and if the breach caused the plaintiff's disease. Additionally, the court had to determine whether the Dust Diseases Board payments received by the plaintiff should be deducted from any damages awarded. The court also considered the foreseeability of the disease and the extent to which the employer could be held liable for the plaintiff's condition.

The court held that the employer owed a duty of care to the plaintiff, which included providing a safe working environment and appropriate protective equipment. The court found that the employer had breached this duty by failing to provide adequate safety measures and protective equipment. The court further found that the breach of duty directly caused the plaintiff's disease. In terms of the Dust Diseases Board payments, the court ruled that these payments should be deducted from any damages awarded to the plaintiff. The court reasoned that the payments were made to compensate the plaintiff for his disease and therefore should not be awarded twice.

The court ordered Amaca Pty Ltd to pay the plaintiff damages, reduced by the amount of Dust Diseases Board payments received. The court determined the exact amount of damages to be awarded after considering the specific circumstances of the case. This decision reinforces the importance of employers providing adequate safety measures and protective equipment to their employees, particularly in high-risk industries such as brake mechanics.

Orders