Martin v Amaca Pty Ltd (No 2) - [2023] VSC 319

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

DUST DISEASES LIST

S ECI 2020 03744

LEIGH MARTIN	Plaintiff
v
AMACA PTY LTD & Ors	Defendant
(according to the attached schedule)

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	29-31 March, 3 April 2023
DATE OF JUDGMENT:	15 June 2023
CASE MAY BE CITED AS:	Martin v Amaca Pty Ltd & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 319

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TORTS – Negligence – Contribution proceedings between defendants – Plaintiff’s claim for damages for mesothelioma caused by inhalation of asbestos fibres – Plaintiff’s claim against defendant due to exposure to asbestos during home renovation settled – Defendant claimed a second exposure occurred at Scout Hall at St Bede’s School during scout meetings contributed to plaintiff’s damage – Onus of proof of exposure to asbestos at Scout Hall not discharged – Contribution proceedings dismissed – No new point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Defendant	Mr C Blanden KC with Mr J Angenet	Mills Oakley
For the First Third Party	Mr M Clarke	Gilchrist Connell
For the Second Third Party	Ms K Bradey	Colin Biggers Paisley

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Issues.................................................................................................................................................... 1

The evidence....................................................................................................................................... 2

The plaintiff.................................................................................................................................... 2
The scout leaders........................................................................................................................... 4
A former student........................................................................................................................... 6
The limpet register (Dr Kilpatrick)............................................................................................. 6
The building project at the Scout Hall....................................................................................... 9
Mr Kottek..................................................................................................................................... 10
Affidavit of Vanessa Kemp........................................................................................................ 14

Resolution of issues......................................................................................................................... 16

Presence of asbestos and whether the plaintiff was exposed............................................... 16

Conclusion......................................................................................................................................... 25

HIS HONOUR:

Background

The defendant, Amaca, settled the plaintiff’s principal proceeding for damages against it in the sum of $1,050,000 plus costs agreed at $115,000. The plaintiff alleged that he was exposed to asbestos during the course of and from renovations to his family home at Balwyn in about 1980.

The fact that the plaintiff has mesothelioma, and the reasonableness of that settlement were not disputed in these third party proceedings, by which Amaca sought contribution and/or indemnity from the first third party (the Scouts) and the second third party (St Bede’s) towards the plaintiff's judgment and costs, on the basis that the plaintiff was also exposed to asbestos when attending scout meetings at the St Bede’s Primary School in a building known as the Scout Hall.

The Scouts and St Bede’s each contested their liability to contribute and the extent of any such contribution to the settlement.

Issues

The issues to be determined to resolve the contribution proceedings were:

(a) was asbestos present in or on the ceiling of the Scout Hall of St Bede's Primary School between 1980 and 1983;

(b) if so, was the plaintiff exposed to asbestos during the course of his attendance at St Bede’s Primary School in North Balwyn from about 1980 to 1983 as a member of the Fifth Camberwell North Scout Troop.

(c) was the risk of serious lung injury foreseeable to the Scouts and/or St Bede’s in the circumstances of the exposure alleged…

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: [2023] VSC 319
Decision Date: 15 June 2023

CaseChat Overview and Summary

The case involved the plaintiff, Martin, who brought proceedings against Amaca Pty Ltd for damages caused by mesothelioma due to asbestos exposure. The claim was settled with respect to exposure during home renovations, but the defendant argued for contribution, claiming a second exposure at Scout Hall during scout meetings at St Bede’s School contributed to the plaintiff's condition. The court was tasked with determining whether the defendant's claim for contribution was valid and whether there was a new point of principle to be considered.

The primary legal issue was whether the defendant had discharged the onus of proving a second exposure to asbestos occurred at Scout Hall, which contributed to the plaintiff's illness. Additionally, the court needed to assess if the defendant's claim introduced any new points of principle that warranted further consideration. The court's analysis hinged on the defendant's ability to substantiate the claim that the second exposure at Scout Hall was a contributing factor to the plaintiff's mesothelioma.

In delivering the judgment, the court found that the defendant failed to discharge the onus of proof regarding the second exposure to asbestos at Scout Hall. The evidence presented did not sufficiently establish that the exposure at Scout Hall contributed to the plaintiff's condition. Furthermore, the court concluded that the defendant's claim did not introduce any new points of principle that required further deliberation. Consequently, the contribution proceedings were dismissed, and no new legal principles were identified.

The court's final orders were that the contribution proceedings brought by Amaca Pty Ltd against Martin were dismissed. The court ruled that there were no new points of principle to consider, and the defendant's claim for contribution was unsuccessful due to the failure to prove the second exposure to asbestos at Scout Hall.

Orders