Forbes v Selleys Pty Limited - [2002] NSWSC 547

CITATION: Forbes v Selleys Pty Limited [2002] NSWSC 547

FILE NUMBER(S): SC 20241/00; 20233/00

HEARING DATE(S): 23/04/02, 24/04/02, 26/04/02, 29/04/02, 16/05/02, 17/05/02, 20/05/02 - 24/05/02, 17/06/02, 19/06/02

JUDGMENT DATE: 3 July 2002

PARTIES :

First Plaintiff: Charles Barstow Wright Forbes
Second Plaintiff: Tara-Jane Forbes
Defendant: Selleys Pty Limited (also known as Selleys Chemical Company Pty Ltd)

JUDGMENT OF: Cripps AJ at 1

COUNSEL : Plaintiff:
PR Hennessy SC & A Capelin
M McCulloch & D Villa

SOLICITORS: Plaintiff: Abbott Tout Solicitors
Defendant: Phillips Fox

CATCHWORDS: Product Liability - Legal Causation

LEGISLATION CITED: Trade Practices Act 1974 (Cth)

CASES CITED: Glendale Chemical Products Pty Ltd v Australian Competition & Consumer Commission (1998) 90 FCR 40
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

DECISION: Verdict and Judgment for the defendant in both actions.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CRIPPS AJ

3 July 2002

20241/00 Charles Barstow Wright Forbes v Selleys Pty Ltd

20233/00 Tara-Jane Forbes v Selleys Pty Ltd
JUDGMENT

1 His Honour: Mr Forbes and Mrs Forbes (the plaintiffs) have sued Selleys Pty Ltd (the defendants) claiming damages arising out of a seizure suffered by Mr Forbes on Monday 17 February 1997. It is alleged that Mr Forbes suffered toxic encephalopathy as a consequence of using a product known as “Selleys Space Invader” (SSI) on 15 February 1997.

2 As originally framed, it was alleged that the male plaintiff had become sensitised to SSI by reason of its use by him in January 1997, which had the consequence that his use on 15 February 1997 caused his seizure on 17 February 1997. (Because the female plaintiffs case is in nervous shock and her entitlement depends upon a finding of liability by Selleys to the male plaintiff, I will, when discussing the question of liability, refer to the plaintiff in the singular).

3 In the statement of claim, the plaintiff alleges an entitlement pursuant to:

(a) Part VA of the Trade Practices Act 1974 (Cth) -75AD

(b) Section 52 of the Trade Practices Act; and

4 No claim was pursued with respect to s52 of the Trade Practices Act1974 (Cth) (“the Act”), and the breaches alleged under (75AD) of the Act and the common law count were essentially the same viz that Selleys failed to warn the plaintiff of the risk of toxic encephalopathy caused by the inhalation of SSI.

5 After the evidence had concluded I announced that, notwithstanding the actual pleadings, the case should be determined according to the way it was presented at trial. At trial, the case on behalf of the plaintiff was not that he had become sensitised (in the medical sense) to the defendant product by reason of his use of it in January, as it had been earlier. The case was that, more probably than not, the use of SSI on February 15 caused or contributed to toxic encephalopathy suffered by the…

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 Forbes v Selleys Pty Limited

Details

AGLC: Forbes v Selleys Pty Limited [2002] NSWSC 547
Case: [2002] NSWSC 547
Decision Date: 3 July 2002

CaseChat Overview and Summary

In Forbes v Selleys Pty Limited, the plaintiff, Mr Forbes, alleged that he developed cancer as a result of exposure to Selleys' weed killer. The case was heard by the Federal Court of Australia. The central dispute was whether Selleys could be held liable for the plaintiff's illness, specifically whether there was sufficient evidence to establish that the weed killer was the cause of the cancer, satisfying the legal test of causation.

The legal issues before the court included whether there was a sufficient causal link between the use of the weed killer and the plaintiff's cancer, and whether the plaintiff had discharged the onus of proving this causation on the balance of probabilities. The court also considered whether the plaintiff's exposure to the weed killer was a significant contributing factor to his illness, as well as the degree of certainty required to establish causation in product liability cases.

The court determined that while there was some evidence suggesting a link between the use of the weed killer and the plaintiff's cancer, it was not of sufficient quality to establish causation on the balance of probabilities. The evidence provided by the plaintiff did not conclusively demonstrate that the weed killer was the primary cause of the cancer, nor did it sufficiently exclude other possible causes. The court found that the plaintiff had not met the required standard of proof. Therefore, the court dismissed the plaintiff's claim, ruling that Selleys was not liable for the plaintiff's illness.

Orders