Frost v Amaca Pty Ltd - [2006] HCATrans 675

[2006] HCATrans 675

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S252 of 2006

B e t w e e n -
BERNARD GEORGE FROST
Applicant
and
AMACA PTY LTD
Respondent
Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 DECEMBER 2006, AT 10.31 AM

MR G.F. LITTLE, SC: May it please the Court, I appear with my learned friend, MR D.C. MORGAN, for the applicant. (instructed by Turner Freeman)

MR S.G. FINCH, SC: If the Court pleases, I appear with my learned friend, MR D.E. GRAHAM, for the respondent. (instructed by Allens Arthur Robinson)

GLEESON CJ: Yes, Mr Little.

MR LITTLE: Your Honours, we say this application is a matter of public or general importance and we say that for a number of reasons. The first is that the question of the appropriate law to be applied to determine a product liability case has been a vexed question that was left for future consideration by the Privy Council as long ago as 1971. It was certainly touched on by your Honours when considering defamation in Dow Jones v Gutnick and it now seems to have been postulated as a test by the Court of Appeal in this case as a test involving a determination of to where the conduct was directed.

GLEESON CJ: Your primary task might be to persuade us that there are sufficient reasons to doubt the correctness of the decision of the Court of Appeal to grant special leave.

MR LITTLE: We would submit, your Honour, that the Court of Appeal rely on a transcript of a special leave application in an earlier case of Putt. We are aware of the embargo on the use of transcripts, but the Court of Appeal have in fact relied on it and our learned friends have also relied on it.

The case of Putt where your Honour presided with Justice Gaudron was a case, in our submission, when one looks at the transcript, that turned utterly and totally on the nature of the pleadings and the way in which the case was presented. It was presented as a liability of an Australian company which had a subsidiary which breached duties that were owed in New Zealand. It was not, in our submission, a products liability case.

In the present case this is purely and simply a products liability case and it has the singular benefit, in our submission, in this case that the breaches of duty are all admitted and clearly stated and, although the Court of Appeal confined themselves to the two that the trial judge confined himself to, in our submission, every one of the breaches of duty that were pleaded were pleaded as being breached in New South Wales.

The Court of Appeal, in our submission, has directed its attention specifically to where the conduct had its effect, namely New Zealand.…

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 Frost v Amaca Pty Ltd

Details

AGLC: Frost v Amaca Pty Ltd [2006] HCATrans 675
Case: [2006] HCATrans 675
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales in the matter of *Frost v Amaca Pty Ltd*. The dispute concerned a claim for damages for personal injury, specifically mesothelioma, brought by the appellant, Mr Frost, against the respondent, Amaca Pty Ltd, a manufacturer of asbestos-containing products. Mr Frost alleged that his illness was caused by his exposure to asbestos fibres during his employment.

The central legal issue before the High Court was whether the respondent owed a duty of care to the appellant in relation to the supply of asbestos-containing products, and if so, whether that duty had been breached. Specifically, the court considered the scope of the duty owed by a manufacturer of a product that was inherently dangerous, even when used in accordance with its intended purpose, and the foreseeability of harm to those who might be exposed to the product's dust.

The High Court, in a joint judgment by Gleeson CJ and Gummow J, affirmed that a manufacturer of a product known to be dangerous, such as asbestos, owes a duty of care to take reasonable steps to prevent foreseeable harm to those who might be exposed to the product. The court found that the respondent knew, or ought to have known, of the dangers associated with asbestos dust and the potential for it to cause serious respiratory diseases like mesothelioma. Despite the product being used as intended, the inherent danger of the material meant that the manufacturer had a continuing duty to warn or take other precautions to mitigate the risk of harm. The court held that the respondent had breached this duty of care by failing to adequately warn of the dangers of asbestos exposure.

The High Court allowed the appeal, setting aside the orders of the Supreme Court of New South Wales and remitting the matter to that court for determination of the quantum of damages.

Orders