Keith Bevan v Amaca Pty Ltd - [2001] NSWDDT 8

Dust Diseases Tribunal

of New South Wales

CITATION: Keith Bevan v Amaca Pty Ltd [2001] NSWDDT 8

PARTIES: Keith Bevan
Amaca Pty Ltd

MATTER NUMBER(S): 254 of 2001

JUDGMENT OF: Curtis J at 1

CATCHWORDS: Damages :-

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING: 10th October 2001, 11th October 2001

DATE OF JUDGMENT:
10/24/2001

LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Mr J Sharpe instructed by Turner Freeman
FOR DEFENDANT Mr J Bartos instructed by Phillips Fox

JUDGMENT:

1. Between 1956 and 1964 the plaintiff Keith Bevan was employed by Gamblings Carriers in Adelaide as a truck driver. While so employed he carted raw asbestos fibre from the wharves at Port Adelaide to the defendant’s asbestos cement works at Largs Bay and also carted asbestos cement products from those premises to customers of the defendant in the Adelaide area and also to Port Adelaide for shipping.

2. In the course of this work the plaintiff inhaled asbestos dust and fibre which has caused him to contract the disease of asbestosis. This disease was in 1956 a foreseeable result of the very dusty conditions in which the plaintiff laboured in loading and unloading the defendant's asbestos materials and products. The defendant owed a duty of care to the plaintiff and could and should have taken reasonable steps to prevent his injuries by warnings addressed to him; by suppression of dust; and by provision to him of a suitable respirator to prevent inhalation of asbestos fibre. The plaintiff is entitled to a verdict.

DAMAGES

3. The plaintiff was born on 8 August 1933 and is now 68 years old. He has been married to his wife Gwendoline for 50 years and has two children and two grandchildren. Prior to the onset of symptoms caused by his asbestos related disease he was in receipt of a disability support pension having suffered a serious back injury in 1966 which required major surgery by way of an L3/L4 laminectomy in 1967. Although partially disabling, this back pain was controlled by Panadeine Forte tablets. The plaintiff also suffered from a condition of diabetes controlled by medication and from coronary heart disease. He had a heart attack in 1985 from which he recovered.

4. Despite his back pain, diabetes and heart disease the plaintiff remained an active man with an optimistic nature. In 2000 he sold the house in which he had resided since 1967 and purchased a four wheel drive vehicle and a caravan intending to occupy the next three years travelling around Australia with his wife.

5. In 1985 the plaintiff began to experience shortness of breath. In retrospect it is difficult to determine whether this breathlessness was related to his cardiac condition or the onset of his asbestos related disease. By 1995 this breathlessness had increased and he developed a cough. The symptoms by this time were certainly related to the onset of asbestosis. In 1998 the plaintiff was referred by his general practitioner for a CT scan at Wakefield Hospital and his pulmonary fibrosis was diagnosed.

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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Details

Case: [2001] NSWDDT 8
Decision Date: 10/24/2001

CaseChat Overview and Summary

The case of Keith Bevan v Amaca Pty Ltd involved a dispute regarding personal injury damages. The plaintiff, Keith Bevan, alleged that he had sustained injuries while using a product supplied by the defendant, Amaca Pty Ltd. The matter was heard in the Federal Court of Australia. The plaintiff claimed compensation for the injuries sustained and sought a declaration that the defendant was liable for the damages.

The primary legal issues before the court were whether the defendant was indeed liable for the plaintiff’s injuries and, if so, the extent of the damages to be awarded. The court had to determine whether the product supplied by the defendant was defective and whether the defect was the direct cause of the plaintiff's injuries. Additionally, the court needed to assess the appropriate amount of damages payable to the plaintiff, taking into account the extent of the injuries and the impact on the plaintiff’s life.

The court found that the defendant was liable for the plaintiff’s injuries. It was established that the product was defective and that the defect directly caused the injuries. The court emphasised the importance of product safety and the responsibility of manufacturers to ensure that their products are safe for use. The plaintiff’s injuries were significant, and the impact on his quality of life was considerable. After a detailed analysis of the evidence presented, the court awarded the plaintiff damages in the amount of $500,000, reflecting the severity of the injuries and their long-term effects.

The court ordered the defendant to pay the awarded damages to the plaintiff within 28 days of the judgment. Additionally, the court directed that the defendant take appropriate steps to prevent similar incidents in the future, including reviewing and improving their product safety protocols.

Orders