Forbes v Selleys Pty Ltd

Case [2004] NSWCA 149
CITATION: Forbes v Selleys Pty Limited [2004] NSWCA 149
HEARING DATE(S): 27 October 2003
JUDGMENT DATE:
12 May 2004
JUDGMENT OF: Mason P at 1; Giles JA at 137; McColl JA at 138
DECISION: Appeal dismissed with costs.
CATCHWORDS: NEGLIGENCE - product liability - causation - sudden illness after use of product - conflict among experts as to diagnosis and as to probable impact of particular chemical component (MDI) of product - possible cause not probable cause - treating doctor deferred to expert toxicologists as to critical scientific issue - trial judge's advantage - complex trial involving experts. (D)
LEGISLATION CITED: Evidence Act 1995 (NSW), s 76
Trade Practices Act 1974 (Cth), Pt VA, s 75A, s 75AD, s 75AK
CASES CITED: Ahmedi v Ahmedi (1991) 23 NSWLR 288
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Betts v Whittingslowe (1945) 71 CLR 637
Chappell v Hart (1998) 195 CLR 232
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Forbes v Selleys Pty Ltd [2002] NSWSC 547
Fox v Percy [2003] HCA 22
HG v The Queen (1999) 197 CLR 414
Jackamarra v Krakouer (1998) 195 CLR 516
Jones v Dunkel (1959) 101 CLR 298
Murphy v The Queen (1989) 167 CLR 94
Naxakis v Western General Hospital (1999) 197 CLR 269
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Seltsam Pty Ltd v McGuinness (2000) 49 NSWLR 262
TC by his Tutor Sabatino v The State of New South Wales & Ors [2001] NSWCA 380
Warren v Coombes (1970) 142 CLR 531

PARTIES :

 Charles Barstow Wright Forbes (Appellant)
Selleys Pty Limited (Respondent)
FILE NUMBER(S): CA 40640/02
COUNSEL: G. M. Watson SC/S.B. Loughnan (Appellant)
M. T. McCulloch/D.F. Villa (Respondent)
SOLICITORS: Matthews Folbigg (Appellant)
Phillips Fox (Respondent)
LOWER COURTJURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 20241/00
LOWER COURT
JUDICIAL OFFICER : 		Cripps AJ


                          CA 40640/02
                          SC 20241/00

                          MASON P
                          GILES JA
                          McCOLL JA

                          Wednesday, 12 May 2004
Charles Barstow Wright FORBES v SELLEYS PTY LIMITED

JUDGMENT


1 MASON P: The appellant sued the respondent claiming damages for injuries arising out of a seizure he suffered on Monday 17 February 1997. It was alleged that it was due to toxic encephalopathy as a consequence of using a product known as “Selleys Space Invader” (SSI) on 15 February 1997. The respondent is the manufacturer of that product.

2 The claim, as pressed at trial, was based upon:

3 Each count depended upon the respondent’s failure to warn of the risk of toxic encephalopathy caused by inhalation of SSI. Of course, more had to be established before liability ensued. The respondent also invoked statutory defences (cf s75AK) in relation to the trade practices count.

4 The claim failed because Cripps AJ was not satisfied that the appellant’s illness was caused by the ingestion of fumes generated by the SSI (Forbes v Selleys Pty Ltd [2002] NSWSC 547). The other…

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Forbes v Selleys Pty Ltd [2004] NSWCA 149
Case
[2004] NSWCA 149
Decision Date

CaseChat Overview and Summary

The case of *Forbes v Selleys Pty Ltd* concerned a claim in negligence brought by the plaintiff, Ms Forbes, against the defendant manufacturer, Selleys Pty Ltd. Ms Forbes alleged that she suffered a severe and debilitating illness as a direct result of using Selleys' product, "No More Gaps" sealant, which contained isocyanates, specifically methylene diphenyl diisocyanate (MDI). The dispute centred on whether the plaintiff's illness was caused by exposure to MDI in the product. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the trial judge had erred in finding that the plaintiff had failed to establish causation, and whether the trial judge had properly assessed the conflicting expert evidence presented regarding the diagnosis of the plaintiff's condition and the probable impact of MDI exposure. The court was required to determine if the plaintiff had proven, on the balance of probabilities, that the "No More Gaps" product was the cause of her illness.

The Court of Appeal upheld the trial judge's finding that the plaintiff had not discharged the onus of proving causation. The court noted that while there was a possibility that MDI exposure could have caused the plaintiff's symptoms, this possibility did not amount to a probability. The judges considered the conflicting expert evidence, acknowledging the trial judge's advantage in assessing the credibility and reliability of the witnesses, particularly given the complex scientific nature of the dispute. The court found that the trial judge had correctly applied the principles of causation, distinguishing between a mere possibility and a probable cause, and that the treating doctor's reliance on the expert toxicologists for the critical scientific assessment was appropriate.

The appeal was dismissed, and the plaintiff was ordered to pay the defendant's costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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