Appellant: D L Davies SC and K Smark Respondent: G Graham and T Bates
SOLICITORS:
Appellant: Phillips Fox, Sydney Respondent: Borthwick Wilson Smith
CATCHWORDS:
DAMAGES - Action for damages - Claim under Trade Practices Act s52, s82 - Misleading or deceptive conduct - Inadequacy of product label on cleaning substance - Employee suffered injury - Requirement of causation - No requirement that damages can be recovered only where the applicant relies directly upon the conduct of the party constituting contravention of the relevant provision; DAMAGES - Application for reduction of damages - Application of Workers Compensation Act 1987 s151Z - Apportionment of liability between manufacturer and employer - Causative impact of their respective actions - Common liability not destroyed by the way the cause of action was framed
DECISION:
Appeal allowed in part; See par 65
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40691/97 DC (Newcastle) 9/93
MASON P GILES JA DAVIES AJA
Friday 10 December 1999
HAMPIC PTY LIMITED v Janette Barbara ADAMS
The respondent was working as a cleaner in the employment of the Newcastle City Council (“the employer”). On 7 February 1990 she was directed to use a cleaning product called “Power Kleen” manufactured by the appellant to remove boot polish from the surface of a table in a babies’ change room. She wore vinyl gloves issued by the employer with white cotton gloves underneath and she checked that the gloves had no holes in them before she put them on. The cleaning task took about ten minutes.
After the task which involved using dipping a pad into the undiluted cleaning fluid it became obvious that the cotton gloves had changed colour and developed a hole. The respondent suffered itchy, burning sensations and blistering shortly afterwards. On consultation with a skin specialist it was confirmed that she had contracted dermatitis and on the advice of her specialist she was forced to cease employment on the 17 May 1990.
The appellant distributed the cleaning product in 25 litre drums with a warning label on the side indicating the dilution requirements and the necessity to wear rubber gloves with prolonged use. The respondent’s cleaning supervisor distributed the product to individual cleaners in smaller tin containers which did not carry any label or warning notice.
The respondent commenced proceedings in the District Court against the appellant in relation to the inadequacy of the labelling on the drum in a context where it was shown to be capable of causing injury when used in a manner applied by the respondent. McDonnell…
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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AGLC
Hampic Pty Ltd v Adams [1999] NSWCA 455
Case
[1999] NSWCA 455
Decision Date
CaseChat Overview and Summary
Hampic Pty Ltd appealed to the New South Wales Court of Appeal against a decision of the District Court of New South Wales. The dispute concerned a claim for damages brought by Mr Adams against Hampic Pty Ltd, alleging misleading or deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). Mr Adams had suffered an injury allegedly due to the inadequacy of a product label on a cleaning substance manufactured by Hampic Pty Ltd.
The Court of Appeal was required to determine whether Hampic Pty Ltd had engaged in misleading or deceptive conduct, and if so, whether this conduct caused Mr Adams' injury. A further issue was whether the damages awarded should be reduced under section 151Z of the *Workers Compensation Act 1987* (NSW), which concerns the apportionment of liability between a manufacturer and an employer where both are found to be liable for an injury. The court also considered whether the framing of the cause of action, specifically a claim under the *Trade Practices Act*, destroyed the possibility of common liability for the purposes of apportionment.
The Court of Appeal held that the inadequacy of the product label constituted misleading or deceptive conduct. Crucially, the court affirmed that it was not necessary for Mr Adams to have relied directly on Hampic Pty Ltd's conduct to recover damages. The primary focus was on causation, and the court found that the inadequate labelling was a causative factor in Mr Adams' injury. Regarding the apportionment of liability, the court determined that the common liability of Hampic Pty Ltd and Mr Adams' employer was not extinguished by the nature of the claim brought against Hampic Pty Ltd. The court considered the causative impact of the respective actions of the manufacturer and the employer in assessing the apportionment.
The appeal was allowed in part, indicating that the original decision was varied in some respect, likely concerning the quantum of damages or the apportionment of liability.