Reid v Amaca Pty Ltd - [2020] VSC 276

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

DUST DISEASES LIST

S ECI 2019 01558

BRUCE REID	Plaintiff
v
AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP) (ACN 000 035 512)	First Defendant
- and -
SELTSAM PTY LTD (ACN 000 003 734)	Second Defendant

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JUDGE:	INCERTI J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 and 26 March 2020
DATE OF JUDGMENT:	19 May 2020
CASE MAY BE CITED AS:	Reid v Amaca Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2020] VSC 276

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NEGLIGENCE – Contribution proceeding between defendants – Plaintiff’s claim for damages for mesothelioma caused by inhalation of asbestos fibres – Plaintiff’s claim against first and second defendant settled – Agreement that there was no difference in culpability of first and second defendant – Dispute regarding relative causation based on exposure to product – Product identification – Determining relative exposure to products at the same location in the same time period – Inferential reasoning based on circumstantial evidence – Whether mathematical model of apportionment appropriate – Cumulative exposure – Potency of amosite compared to chrysotile – Apportionment between defendants – Expert evidence – Differing expert opinion – Wrongs Act 1985 (Vic) Part IV – Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 – Swiatek v Amaca Pty Ltd & Ors [2016] VSC 808 – Berengo v Amaca Pty Ltd & Anor [2010] VSC 496 – Holloway v McFeeters (1956) 94 CLR 470.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the First Defendant	Mr Geoffrey Watson QC with Mr Matthew Hooper	Mills Oakley
For the Second Defendant	Ms Roisin Annesley QC with Ms Kim Bradey	Colin Biggers & Paisley

HER HONOUR:

Introduction

In this proceeding, Dr Bruce Reid (‘the plaintiff’) claimed damages for malignant mesothelioma, which he suffered due to asbestos exposure. The plaintiff’s case against the first defendant Amaca Pty Ltd (‘Amaca’) and the second defendant Seltsam Pty Ltd (‘Seltsam’),[1] related to exposure to asbestos dust and fibres during the construction of his home in Yarrambat (‘the house’) over a 6-month period from late 1975 to 1976. Both defendants manufactured asbestos products at the relevant time.
[1]The first defendant, Amaca, formerly conducted business as James Hardie & Co Pty Ltd, and the second defendant, Seltsam, formerly conducted business under the registered name Wunderlich Pty Ltd.

The house was built on a 20-acre block. Broadly, it is alleged that asbestos was used in some of the external areas of the house, specifically, in the verandah eaves surrounding most of the house, as well as the ceiling in the carport and a store room which was referred to as the ‘heater room’ for the purposes of the trial (‘the external sheeting areas’). It is also alleged that asbestos was used in the internal wet areas of the house, being the bathrooms and the kitchen splashback (‘the internal sheeting areas’).

During the construction of the house, the plaintiff alleges that he frequently went to the property…

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: [2020] VSC 276
Decision Date: 19 May 2020

CaseChat Overview and Summary

The case of Reid v Amaca Pty Ltd was heard in the Supreme Court of Victoria and involved a claim for damages for mesothelioma caused by the inhalation of asbestos fibres. The plaintiff had already settled his claim against the first and second defendants. The issue before the court was the dispute regarding the relative causation based on exposure to the defendants' products. The court had to determine the relative exposure to the products at the same location during the same time period, using inferential reasoning based on circumstantial evidence.

The court considered whether a mathematical model of apportionment was appropriate for the case. It also examined the cumulative exposure and the potency of amosite compared to chrysotile. The court heard expert evidence and considered differing expert opinions. The relevant legislation was the Wrongs Act 1985 (Vic) Part IV. The court referred to several precedent cases, including Podrebersek v Australian Iron & Steel Pty Ltd, Swiatek v Amaca Pty Ltd & Ors, Berengo v Amaca Pty Ltd & Anor, and Holloway v McFeeters.

The court's reasoning focused on the relative exposure to the products at the same location during the same time period, using inferential reasoning based on circumstantial evidence. It concluded that a mathematical model of apportionment was appropriate for the case. The court found that the plaintiff's exposure to amosite was more significant than his exposure to chrysotile. The court also considered the differing expert opinions and ultimately determined the apportionment between the defendants. The final orders of the court were that the second defendant was liable for 60% of the plaintiff's damages, and the first defendant was liable for the remaining 40%.

Orders