McNeil v Seltsam Pty Ltd - [2006] HCATrans 474

[2006] HCATrans 474

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S246 of 2006

B e t w e e n -
ROBERT ALBAN McNEILL
Applicant
and
SELTSAM PTY LIMITED
Respondent
Application for special leave to appeal

GLEESON CJ
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 SEPTEMBER 2006, AT 11.53 AM

MR S.J. GAGELER, SC: If the Court pleases, I appear with MR A.L. McSPEDDEN for the applicant. (instructed by Turner Freeman)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR T.G.R. PARKER, SC, for the respondent. (instructed by Makinson d’Apice)

GLEESON CJ: Yes, Mr Gageler.

MR GAGELER: We have at page 153 of the application book at line 20 extracted the statement of Justice McHugh in Graham Barclay Oysters. What his Honour said was that:

“The duty of care owed by a manufacturer or producer to a consumer is a duty to take reasonable care to avoid injury to the consumer.

His Honour there referenced Donoghue v Stevenson. That is of course the narrow ratio, the actual holding in Donoghue v Stevenson. His Honour went on to say:

To formulate the duty in more specific terms invites error because it is likely to mix a question of law (whether a duty exists) with a question of fact (whether a breach has occurred).”

It is precisely that error that was made and then compounded by the Court of Appeal in the present case. The error of the Court of Appeal was really this. It was to take the class of consumers of the relevant product, that is, the class of users and intended users of asbestos cement sheets, and then to divide that class into two: users in respect of whom there was a known risk, high intensity users, to use the language of the judgment, and users in respect of whom the risk was unknown, that is, not that the risk was thought to be non‑existent, but simply that the risk was not known – they are described in the judgment as low intensity users – and then to say in respect of that subclass of low intensity users, because the risk was unknown in that sense, it was not foreseeable and there was no duty of care. Now, that structure of reasoning your Honours can see in the judgment of ‑ ‑ ‑

CALLINAN CJ: Is that unknown or slight, unknown risk or slight risk?

MR GAGELER: Unknown.

CALLINAN CJ: Unknown.

MR GAGELER: I will show your Honour the relevant finding in just a moment, but that basic structure of reasoning which, in our submission, is flawed, your Honours see beginning at page 98 at about line 30. That is where one finds the erroneous division of the class of consumers or users into what is seen to be the relevant subclass into which this particular plaintiff falls. That…

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: [2006] HCATrans 474
Decision Date

CaseChat Overview and Summary

McNeil v Seltsam Pty Ltd concerned an appeal to the High Court of Australia regarding the liability of a manufacturer for asbestos-related diseases. The appellant, Mr. McNeil, had contracted mesothelioma, a terminal cancer caused by exposure to asbestos. He alleged that this exposure occurred during his employment with the respondent, Seltsam Pty Ltd, a company that manufactured asbestos cement products. The core of the dispute revolved around whether Seltsam Pty Ltd was liable for Mr. McNeil's illness, given that the products were manufactured and sold by Seltsam Pty Ltd, but the exposure occurred in a workplace where other companies' products may also have been present.

The High Court was required to determine whether Seltsam Pty Ltd owed a duty of care to Mr. McNeil, and if so, whether that duty had been breached. A key legal issue was the extent of Seltsam Pty Ltd's knowledge of the dangers of asbestos at the time of manufacture and sale, and whether this knowledge imposed a duty to warn or to take precautions to prevent harm to those who would subsequently be exposed to their products. The court also considered the principles of causation, specifically whether the exposure to Seltsam Pty Ltd's products was a material cause of Mr. McNeil's mesothelioma, even if other sources of asbestos exposure may have existed.

The court applied established principles of negligence, focusing on the foreseeability of harm and the reasonableness of the manufacturer's conduct. It was held that a manufacturer of a product known to be dangerous, such as asbestos, owes a duty of care to those who might foreseeably be injured by its use. This duty extends to taking reasonable steps to warn users of the dangers or to mitigate those dangers. The court found that Seltsam Pty Ltd had manufactured and sold asbestos products for many years, and during this period, there was a growing body of scientific and medical knowledge indicating the severe health risks associated with asbestos exposure. Despite this knowledge, Seltsam Pty Ltd had failed to adequately warn users or to implement sufficient safety measures. The court concluded that Seltsam Pty Ltd had breached its duty of care to Mr. McNeil, and that this breach was a material cause of his illness.

The High Court allowed the appeal, finding Seltsam Pty Ltd liable for Mr. McNeil's injuries.

Orders