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Misiani v Welshpool Engineering Pty Ltd

Misiani v Welshpool Engineering Pty Ltd

Case [2003] WASC 263 19 December 2003

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HENDRIKA MISIANI (As Executor of the Will of ALFREDO ANTONIO MISIANI (DEC)) -v- WELSHPOOL ENGINEERING PTY LTD 008 669 421 (IN LIQ) & ANOR [2003] WASC 263

CORAM: BARKER J

HEARD: 4-7, 10-14 MARCH 2003

DELIVERED : 19 DECEMBER 2003

FILE NO/S: CIV 1214 of 2002

BETWEEN: HENDRIKA MISIANI (As Executor of the Will of ALFREDO ANTONIO MISIANI (DEC))
Plaintiff
AND
WELSHPOOL ENGINEERING PTY LTD 008 669 421 (IN LIQ)
First Defendant
AMACA PTY LTD 000 035 512 (Formerly JAMES HARDIE & COY PTY LTD)
Second Defendant

Catchwords:

Survival action under Law Reform (Miscellaneous Provisions) Act 1941 (WA) by plaintiff widow on behalf of estate of deceased - Claim for damages by plaintiff as "relative" under Fatal Accidents Act 1959 (WA) - Whether each defendant wrongfully exposed deceased to asbestos in workplace - Whether injury from disease of mesothelioma foreseeable by first defendant in period between 1963 and mid1968 - Whether duty of care to deceased breached by each defendant - Whether each defendant "caused or materially contributed to" the deceased's mesothelioma - Assessment of damages in survival action - Assessment of damages in Fatal Accidents Act claim

Contribution proceedings between defendants under Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA) - Question of contributions as between defendants

Legislation:

Fatal Accidents Act 1959 (WA), s 4, s 5(2)(b), s 6(1)(a), s 6(2)

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 (WA), s 7(1)(c)
Law Reform (Miscellaneous Provisions) Act 1941 (WA), s 4(1), s 4(2)(c)

Supreme Court Act1935 (WA), s 32

Result:

In action between plaintiff and defendants: judgment for the plaintiff against each defendant
In contribution proceedings: order that second defendant should recover contribution from first defendant in respect of plaintiff's damages in the proportion 97:3

Category: A

Representation:

Counsel:

Plaintiff:     Mr J R C Gordon & Ms L Dropulich
First Defendant             :     Mr M H Zilko SC & Mr M A McAuliffe
Second Defendant         :     Mr G M Watson SC & Ms J M Kubacz

Solicitors:

Plaintiff:     Slater & Gordon
First Defendant             :     McAuliffe Williams & Partners
Second Defendant         :     Minter Ellison

Case(s) referred to in judgment(s):

Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Biddulph v Lenegan, unreported; FCt SCt of WA; Library No 990076; 19 February 1999
Blyth v Birmingham Waterworks Co (1856) 11 Exch 781
Bonham‑Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520
Carroll v Purcell (1961) 107 CLR 73
Chappel v Hart (1998) 195 CLR 232
CSR Ltd v Wren (1997) 44 NSWLR 463
CSR Ltd v Young (1998) 16 NSWCCR 56
De Sales v Ingrilli [2000] WASCA 374; (2000) 23 WAR 417
De Sales v Ingrilli [2002] HCA 52; (2002) 77 ALJR 99
Dwan v Farquhar [1988] 1 Qd R 234
Easther v…

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 Misiani v Welshpool Engineering Pty Ltd

Details

AGLC: Misiani v Welshpool Engineering Pty Ltd [2003] WASC 263
Case: [2003] WASC 263
Decision Date

CaseChat Overview and Summary

In the case of Misiani v Welshpool Engineering Pty Ltd, the Supreme Court of Western Australia considered a survival action and a claim under the Fatal Accidents Act 1959 (WA). The plaintiff, Hendrika Misiani, as the executor of her deceased husband's estate, and in her own right, sued Welshpool Engineering Pty Ltd and Amaca Pty Ltd for damages arising from the deceased's exposure to asbestos and subsequent development of mesothelioma. The court held that both defendants were liable for damages in negligence, as they had exposed the deceased to asbestos in their respective workplaces. The court found that Welshpool Engineering Pty Ltd was primarily responsible for the deceased's exposure to asbestos, which led to the development of mesothelioma. Consequently, Welshpool Engineering Pty Ltd was ordered to pay a greater proportion of the total damages to the plaintiff, while Amaca Pty Ltd was ordered to contribute a smaller proportion. The court assessed the damages awarded under both the Law Reform (Miscellaneous Provisions) Act 1941 (WA) and the Fatal Accidents Act 1959 (WA), taking into account various factors such as pecuniary loss, loss of services, and funeral expenses.

Orders