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King v Amaca Pty Ltd

King v Amaca Pty Ltd

Case [2011] VSC 422 30 August 2011

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PERSONAL INJURIES LIST

S CI 2011 01411

ERIC KING	Plaintiff
v
AMACA PTY LTD (Under NSW Administered Winding Up)	Defendant

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	10, 15-18, 22-26, 29-30 August 2011
DATE OF RULING:	30 August 2011
DATE OF REASONS:	31 August 2011
CASE MAY BE CITED AS:	King v Amaca Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 422

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OCCUPIER’S LIABILITY – Liability of occupier of factory emitting asbestos dust and fibres to pay damages for mesothelioma contracted by a tradesperson who visited the factory for a total of six hours over three days in 1972.

PRACTICE AND PROCEDURE – Application for judgment notwithstanding jury verdict – Leave reserved for the making of the application – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R J Stanley QC with Mr P Over	Maurice Blackburn Pty Ltd
For the Defendant	Mr G Watson SC with Mr G J Moloney	Thomsons Lawyers

HIS HONOUR:

Introduction and summary

Following an eight day trial, on 30 August 2011, a jury of six returned a unanimous verdict for the plaintiff in the sum of $1,150,000 in his action in negligence against the defendant in which he alleged that he contracted mesothelioma from exposure to asbestos dust and fibres at the defendant’s factory in 1972.

After the jury’s verdict was announced, the plaintiff applied for judgment in accordance with the verdict. The defendant applied for an order that the jury’s verdict be set aside and that judgment be entered in its favour notwithstanding the jury’s verdict.[1]
[1]In this ruling, I will use the expression ‘notwithstanding the jury’s verdict’ instead of the Latin expression ‘non obstante veredicto’.

The defendant’s application was made pursuant to leave that I reserved on 25 August 2011, at the conclusion of the evidence. The application relied on the following grounds:

(a)there was no evidence that an injury of the kind suffered by the plaintiff was reasonably foreseeable in 1972; and
(b)causation was not established between any negligence of the defendant and the plaintiff’s mesothelioma.

After hearing the parties’ submissions, I ruled against the defendant’s application and informed the parties that I would deliver reasons for my ruling on 31 August 2011. These are my reasons.

The plaintiff’s claim

The plaintiff claimed that his mesothelioma was caused by his exposure to asbestos dust and fibres in 1972 when he visited one of the defendant’s factories in Perth to repair a machine.[2]
[2]As the preponderance of the evidence was that the plaintiff attended the factory at Welshpool rather than the factory at Rivervale, I will assume that the jury found that the exposure occurred at the Welshpool factory.

It was common ground at the trial that the plaintiff’s exposure to asbestos dust and fibres at the factory was for a total of six hours, comprising visits of two hours’ duration over three separate days (‘factory exposure’). The preponderance of the evidence…

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 King v Amaca Pty Ltd

Details

AGLC: King v Amaca Pty Ltd [2011] VSC 422
Case: [2011] VSC 422
Decision Date: 30 August 2011

CaseChat Overview and Summary

The case of King v Amaca Pty Ltd involved the plaintiff, King, who sought damages for mesothelioma, a disease he contracted due to exposure to asbestos dust and fibres. The defendant, Amaca Pty Ltd, was the occupier of a factory from which King was exposed to the harmful substances. The dispute centred on the liability of the defendant for the plaintiff’s illness. The case was heard in the Supreme Court of New South Wales.

The central legal issue in this case was whether Amaca Pty Ltd, as the occupier of the factory, was liable for the plaintiff’s mesothelioma contracted from exposure to asbestos dust and fibres during his visits to the factory in 1972. The plaintiff argued that the defendant, as the occupier, had a duty of care to prevent the spread of asbestos dust and fibres, which led to his illness. The defendant contended that the plaintiff's exposure was too brief and intermittent to hold them liable, and that the risk of exposure to asbestos was well known at the time.

The court considered the nature and extent of the plaintiff’s exposure, the foreseeability of the risk, and the measures taken by the defendant to mitigate the risk. The court concluded that the defendant, as the occupier, had a duty to take reasonable steps to protect visitors from foreseeable risks. Given the well-documented hazards of asbestos and the significant harm caused to the plaintiff, the court found the defendant liable for the plaintiff’s mesothelioma. The application for judgment notwithstanding the jury's verdict was reserved for further consideration, but ultimately refused by the court.

The court's decision upheld the plaintiff's claim for damages, recognising the occupier's liability for failing to adequately control the exposure to asbestos in the factory premises. The court did not grant the defendant's application for judgment notwithstanding the verdict, thereby affirming the jury's finding of liability.

Orders