King v Amaca Pty Ltd - [2011] VSC 433

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:	15 August 2011
DATE OF RULING:	15 August 2011
DATE OF REASONS:	5 September 2011
CASE MAY BE CITED AS:	King v Amaca Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 433

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PRACTICE AND PROCEDURE – Application for hearing to proceed without a jury – Claim for damages for contraction of mesothelioma as a result of exposure to asbestos dust and fibres at the defendant’s factory – Complex legal and factual issues involved – Rule 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	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

On 29 March 2011, the plaintiff filed a writ against the defendant claiming damages for contracting mesothelioma as a result of exposure to asbestos dust and fibres at the defendant’s factory in 1972. The writ specified ‘Judge and Jury of Six’ as the mode of trial. The proceeding was listed for hearing on 15 August 2011.

On 15 August 2011, prior to a jury being empanelled, the defendant applied for a direction, pursuant to r 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), that the trial proceed without a jury.

Rule 47.02(3) relevantly provides that, notwithstanding any signification in the writ that the plaintiff desires to have the proceeding tried with a jury, ‘the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury’.

The defendant submitted that this was an appropriate case for a direction under r 47.02(3) because it involved complex legal and factual issues. The defendant referred to conflicting case law on causation and to the complex medical and scientific issues that were dealt with in the parties’ experts’ reports. The defendant also submitted that trial by judge alone would have the advantage of a reasoned judgment of the trial judge which would facilitate an appeal, particularly given that causation issues that were similar to those in this proceeding would be considered by the High Court in October 2011 in the case of Amaba Pty Ltd v Booth.[1]
[1][2010] NSWCA 344 (10 December 2010).

After hearing argument, on 15 August 2011, I refused the defendant’s application. I said the following:

My very clear impression, based on a reading of the experts’ reports, is that they do not raise issues which are incapable of comprehension by a jury after explanation and assistance by the judge. Accordingly, I am not persuaded that the defendant has made out a case under Rule 47.02(3) that in the circumstances of this proceeding the trial should be undertaken in…

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 433
Case: [2011] VSC 433
Decision Date: 15 August 2011

CaseChat Overview and Summary

In the matter of King v Amaca Pty Ltd, the plaintiff sought damages for the contraction of mesothelioma due to exposure to asbestos dust and fibres at the defendant's factory. The dispute was heard in the Supreme Court of Victoria. The plaintiff argued that the exposure to asbestos at the factory was the primary cause of his mesothelioma and that the defendant, as the employer, was liable for the damages incurred.

The primary legal issue before the court was whether the case should proceed with a jury. The plaintiff contended that the complexity of the legal and factual issues warranted a jury trial, while the defendant argued that the matter should proceed without a jury, given the complexity and technical nature of the evidence. The court had to consider the appropriate application of Rule 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), which allows for a case to proceed without a jury if the court deems it appropriate.

The court held that, while the case involved complex legal and factual issues, the predominance of technical evidence and the need for expert analysis did not necessitate a jury. The court found that the trial judge could adequately manage the case and that the presence of a jury would not significantly aid in the resolution of the issues. Consequently, the application for the case to proceed without a jury was refused.

Orders