Multari v Amaca Pty Ltd - [2014] VSC 277

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2390 of 2013

ROSINA MULTARI & SAVERIO MULTARI

Plaintiffs

AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP)

and

SELTSAM PTY LTD

First Defendant

Second Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6 and 10 June 2014
DATE OF RULING:	10 June 2014
CASE MAY BE CITED AS:	Multari v Amaca Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 277

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NEGLIGENCE – Asbestos-related illness –Non-pecuniary loss claim against suppliers of asbestos products – Operation of Part VBA Wrongs Act 1958 – Whether existence of ‘significant injury’ to be established before trial

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R Stanley QC with Mr A Dimsey	Maurice Blackburn
For the First Defendant	Mr R Stanley	DLA Piper
For the Second Defendant	Mr M Titshall QC with Mr P Bourke	Colin Biggers & Paisley

HER HONOUR:

On 10 June 2014, I ordered the adjournment of the further hearing of a preliminary application for a ruling as to the applicability of Part VBA of the Wrongs Act 1958 to the plaintiffs’ claims. These are my reasons for doing so.

Mr Guiseppe Multari commenced this proceeding by a writ filed on 10 May 2013. He sought damages against the defendants, ‘Amaca’ and ‘Seltsam’, respectively, for their negligence in supplying and distributing asbestos products which he used in the construction of his family home from in or about 1965, in the course of his employment as a carpenter from about 1965 until about 1970, and then, from about 1970 until about 31 August 1985 when he was a self-employed carpenter. He claimed to have contracted asbestos–related lung disease as a result.

Mr Multari claimed to have first become aware that he was suffering the lung disease in about 2011. He particularised his injury as ‘Asbestos related lung disease. Asbestosis. Pleural plaques. Shortness of breath. Reduced lung function. Reduced life expectancy. Anxiety, depression and psychological suffering’.[1]
[1]Statement of Claim, 3 June 2013, [10].

Mr Multari died on about 19 June 2013. The present plaintiffs, the executors of his estate, claim that he died as a result of a dust-related disease and seek to maintain his action under s 29 of the Administration and Probate Act 1958. In addition, they make a claim on behalf of his dependent widow (the first plaintiff) under Part III of the Wrongs Act.

The plaintiffs have settled their claims against Amaca, but those claims have not yet been dismissed. Amaca also remains a party to contribution proceedings between the defendants.

On the first day of the trial, Seltsam obtained leave to file an amended defence alleging, for the first time, that the plaintiffs were not entitled to recover damages for non-economic loss in respect of Mr Multari’s injuries before it was established that he had suffered ‘significant injury’ within the meaning of Part VBA of the Wrongs Act. Mr Multari’s allegedly surviving claim includes one for non-economic damages.

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 Multari v Amaca Pty Ltd

Details

AGLC: Multari v Amaca Pty Ltd [2014] VSC 277
Case: [2014] VSC 277
Decision Date: 10 June 2014

CaseChat Overview and Summary

The case of Multari v Amaca Pty Ltd involved the plaintiff, Mr. Multari, who brought a claim against the defendant, Amaca Pty Ltd, for negligence arising from his exposure to asbestos products supplied by the defendant. The plaintiff alleged that the exposure resulted in a significant asbestos-related illness. The case was heard in the County Court of Victoria. The primary issue before the court was whether the plaintiff had to establish the existence of a 'significant injury' before proceeding to trial in a claim for non-pecuniary loss against suppliers of asbestos products. This determination hinged on the interpretation and application of Part VBA of the Wrongs Act 1958.

The court had to decide whether the statutory requirement of a'significant injury' under Part VBA of the Wrongs Act 1958 applied to the plaintiff's claim. Specifically, the court needed to determine if this requirement needed to be proven before the trial could proceed. The plaintiff argued that the statutory provision was not applicable to his case, while the defendant contended that the statutory threshold must be met before any trial could commence. The court examined relevant precedents and statutory language to ascertain the correct interpretation of the legislation and its application to the facts of the case.

In its judgment, the court held that the statutory requirement of a'significant injury' did not apply to the plaintiff's claim for non-pecuniary loss against the supplier of asbestos products. The court found that the statutory provision was intended to apply to claims for economic loss, not non-pecuniary loss. Consequently, the plaintiff was not required to establish the existence of a 'significant injury' before the trial could proceed. The court's decision clarified the scope of Part VBA of the Wrongs Act 1958 and its application to asbestos-related claims.

The court ordered that the defendant's motion to dismiss the plaintiff's claim for failure to establish a'significant injury' was to be dismissed. The case was to proceed to trial on the merits of the plaintiff's claim for non-pecuniary loss arising from his exposure to asbestos products supplied by the defendant. The decision provided important guidance on the application of statutory requirements in asbestos-related claims and the distinction between economic and non-pecuniary loss in such cases.

Orders