Rentz v Seltsam Pty Ltd - [2004] NSWDDT 15

NEW SOUTH WALES DUST DISEASES TRIBUNAL

CITATION: Rentz v Seltsam Pty Ltd [2004] NSWDDT 15

PARTIES:
Janet Rentz
Seltsam Pty Ltd

CASE NUMBER: 280 of 2003 of 2004.00

CATCH WORDS: Negligence

LEGISLATION CITED:

CORAM: Curtis J

DATES OF HEARING: 18 July 2003, 24 March 2004, 25 March 2004

DECISION DATE: 25/06/2004

LEGAL REPRESENTATIVES

FOR PLAINTIFF: Mr AJ Leslie QC instructed by Turner Freeman
FOR PLAINTIFF: Mr JJ Fernon SC instructed by Windeyer Dibbs

JUDGMENT:

Niel Joseph Nielsen died on 19 August 2003 after contracting mesothelioma. Janet Rentz, his dependant widow and executrix, sues Seltsam Pty Ltd for damages.

Mr Nielsen’s exposure to Asbestos

In about November 1973 Mr Nielsen and his then wife purchased a property at 224 Morrison Rd Putney as joint tenants. There was upon that property a garage constructed in 1951and clad then with asbestos cement sheets manufactured by the defendant. These sheets contained crocidolite, amosite and chrysotile fibres.
During the winter of 1974 Mr Nielsen carried out some repairs to a garage in the backyard of the property replacing two or three damaged sheets of fibro around the window on the west side of the garage. Mr Nielsen used old sheets stored in the rafters of the garage for the repairs. Those sheets appeared to have been left over from when the garage was originally built.
In carrying out the repairs Mr Nielsen said he went through in the order of 10 sheets. I think it improbable that so many sheets were left over from construction. From the photographs in evidence 10 sheets would have been sufficient to reclad the whole of the garage. I accept that five full size sheets may have been used. The sheets were old and brittle. They were cut by Mr Nielsen with a hand saw, rasped and fastened with hammer and nails.
Mr Nielsen in instructions to his solicitors communicated to Professor Henderson by letter of 24 June 2003 denied any previous asbestos exposure. In his oral evidence on 18 July 2003 he denied “recollection of being exposed to asbestos” and asserted that “there was no time in my life when I said there was asbestos”.
The absence of other exposure is critical to the plaintiff’s case.
In 2002 Mr Nielsen made application to the Dust Diseases Board for payments in respect of his disease. On 2 August 2002, he attended upon Mr Ross Gardner, an advisory officer of the New South Wales Dust Diseases Board, for the purpose of giving to him a record of his industrial history and exposure to asbestos. He remained with Mr Gardner for between one and two hours. In later cross examination he said this:
Q You went there with the intention of making an application to the Dust Diseases Board. Correct.
A Yes, as best I understood it, what they were doing.
Q That was in respect of what you saw as exposure to asbestos during your working life in New South Wales. Is that right.
A Can I-if you like I can…

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 Rentz v Seltsam Pty Ltd

Details

AGLC: Rentz v Seltsam Pty Ltd [2004] NSWDDT 15
Case: [2004] NSWDDT 15
Decision Date: 25 June 2004

CaseChat Overview and Summary

In the New South Wales Dust Diseases Tribunal, Janet Rentz, the widow of Niel Joseph Nielsen, sued Seltsam Pty Ltd for damages resulting from Mr Nielsen's death due to mesothelioma. The case centered around whether the defendant's asbestos products significantly contributed to Mr Nielsen's exposure, given his extensive work history involving various asbestos-related activities. The court had to determine if the plaintiff could prove that the exposure from the defendant's products materially contributed to the total asbestos fiber burden that caused Mr Nielsen's disease.

The primary legal issue was whether the plaintiff could establish that the defendant's asbestos products materially contributed to Mr Nielsen's mesothelioma. Given Mr Nielsen's extensive work history, which included numerous instances of asbestos exposure, the court had to assess the significance of the exposure from the defendant's products. The plaintiff needed to demonstrate that the garage repairs in 1974/1975 materially contributed to his asbestos fiber burden, particularly in the absence of substantial evidence regarding his total asbestos exposure.

The court found that Mr Nielsen's work history involved numerous asbestos-related activities, both in Australia and overseas. He worked at a lead smelter, a transport planner, and on various construction sites, all of which involved significant asbestos exposure. The court noted that without an objective measure or estimate of Mr Nielsen's total asbestos fiber burden, it was impossible to determine the material contribution of the exposure from the defendant's products. The calculations provided by the defendant suggested that the exposure from the garage repairs was minimal, and the plaintiff did not provide any evidence to counter these calculations.

The court concluded that the plaintiff could not prove that the exposure from the defendant's products materially contributed to the total asbestos fiber burden, and thus, the plaintiff's case failed. The court found in favor of the defendant, Seltsam Pty Ltd.

Orders