Forbes v Selleys Pty Ltd

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.