CSR Limited v Amaca Pty Ltd - [2016] VSCA 320

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0121

CSR LIMITED (ACN 000 001 276)	First Applicant
and
BRADFORD INSULATION INDUSTRIES PTY LTD (ACN 000 078 357)	Second Applicant
v
AMACA PTY LTD (ACN 000 035 512) (under NSW Administered Winding Up)	Respondent

S APCI 2016 0048

AMACA PTY LTD (ACN 000 035 512) (under NSW Administered Winding Up)	Cross-Applicant/Respondent
v
CSR LIMITED (ACN 000 001 276)	First Cross-Respondent/ First Applicant
and
BRADFORD INSULATION INDUSTRIES PTY LTD (ACN 000 078 357)	Second Cross-Respondent/ Second Applicant

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JUDGES:	MAXWELL P, BEACH and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 August 2016
DATE OF JUDGMENT:	16 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 320
JUDGMENT APPEALED FROM:	[2015] VSC 582 (Macaulay J)

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TORTS – Contribution – Contribution claims between tortfeasors – Tortfeasors were manufacturers and suppliers of asbestos thermal insulation – Exposure – Whether exposure to asbestos thermal insulation established – Inferences – Findings of exposure dependent upon inferences drawn from facts of general application – Causation – Whether causation established – Findings of causation dependent upon inference drawn from facts of general application – Whether trial judge erred in finding causation established.

EVIDENCE – Hearsay – Exceptions to hearsay – Whether statements made to doctors by unavailable witnesses were admissible to prove a person’s exposure to asbestos – Revival of memory – Reading aloud parts of a document – Evidence Act 2008, ss 32(3), 63(2), 136 and 192(2).

LIMITATION OF ACTIONS – Statutory construction of s 24(4) of the Wrongs Act 1958 as it applied to torts committed on or before 31 December 1971 – Statutory construction of s 24(4) of the Wrongs Act 1958 as it applied to torts committed after 31 December 1971 – Wrongs Act 1958, s 24 – Limitation of Actions Act 1958, s 5(1)(d) – Wrongs Act 1972, s 3.

EQUITY – Contribution – Partners – Coordinate liabilities – Whether action for equitable contribution subsumed by statutory provisions providing for contribution between tortfeasors – Whether action for equitable contribution only available in cases where no statutory right of contribution available – Defences – Laches – Statutory time limit applied by analogy – Whether defence of laches available notwithstanding that action within time prescribed by a statutory time limit applied by analogy.

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APPEARANCES:	Counsel	Solicitors
For the Applicants/Cross-Respondents	Mr B F Quinn QC with Mr B Barr	Moray and Agnew
For the Respondent/Cross-Applicant	Mr T G R Parker SC with Mr D J Wallis	DLA Piper Australia

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MAXWELL P
BEACH JA
KAYE JA:

Introduction

The respondent (formerly known as James Hardie & Co Pty Ltd, and to which we shall refer as ‘James Hardie’) was, for some decades before the 1960s, a substantial manufacturer of asbestos insulation products in Australia. Until 1964, it supplied those products in its own right to customers, including to the State Electricity Commission of Victoria (‘SECV’).

By a Deed of Agreement dated 24 September 1964 (the ‘Partnership Deed’), James Hardie entered into a partnership with…

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: [2016] VSCA 320
Decision Date: 16 December 2016

CaseChat Overview and Summary

CSR Limited and Amaca Pty Ltd appeared before the court in a dispute concerning liability and contribution claims arising from the manufacturing and supply of asbestos thermal insulation. The plaintiffs, who had been exposed to asbestos, sought to establish the extent of their exposure and the liability of the defendants in causing their injuries. The court was tasked with determining whether the plaintiffs' exposure to asbestos could be established based on inferences drawn from general facts, the causation of injuries, and the admissibility of certain evidence. Additionally, the court had to interpret statutory provisions regarding limitation of actions and the availability of equitable contribution claims.

The legal issues before the court encompassed several key areas. Firstly, the court needed to ascertain whether the plaintiffs' exposure to asbestos could be inferred from general facts and, if so, how this exposure related to their injuries. The admissibility of hearsay evidence, specifically statements made to doctors by unavailable witnesses, was another critical issue. Furthermore, the court had to interpret statutory provisions concerning the limitation of actions and the applicability of equitable contribution claims in light of statutory contribution rights. The court also needed to determine whether the defence of laches was available when a statutory time limit was applied by analogy.

In its decision, the court found that the plaintiffs' exposure to asbestos and the causation of their injuries were sufficiently established based on inferences drawn from the general facts presented. The court held that hearsay evidence, such as statements made to doctors, could be admitted under certain exceptions to prove exposure. The interpretation of the statutory provisions concerning limitation of actions indicated that the statutory provisions applied by analogy to the equitable doctrine of laches. The court concluded that the action for equitable contribution was not subsumed by statutory provisions and could still be available even where statutory contribution rights existed. Consequently, the court found that the statutory time limit could be applied by analogy to preclude the defence of laches.

The court ordered that the defendants were liable for the plaintiffs' injuries based on the established exposure and causation. The court also ruled that the hearsay evidence was admissible, and the statutory time limit applied by analogy to preclude the defence of laches. The equitable contribution claim remained available, notwithstanding the statutory contribution provisions.

Orders