Seltsam Pty Ltd v Amaca Pty Limited - [2019] VSC 312

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

DUST DISEASES LIST

S CI 2018 01682

JOHN RICHARD HORNE BENZIE	Plaintiff
v
SELTSAM PTY LTD (FORMERLY WUNDERLICH LTD)	Second Defendant
AMACA PTY LIMITED (UNDER NSW ADMINISTERED WINDING UP)	Third Party

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2019
DATE OF JUDGMENT:	14 May 2019
CASE MAY BE CITED AS:	Seltsam Pty Ltd v Amaca Pty Limited
MEDIUM NEUTRAL CITATION:	[2019] VSC 312

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TORT – Contribution – Dust diseases – One tortfeasor compromised plaintiff’s claim including claim for pain and suffering, bodily or mental harm and loss of expectation of life – Plaintiff died – Tortfeasor who paid then sought contribution – Whether liability of tortfeasor to contribute limited by an enactment – Wrongs Act 1958 ss 23B, 24, Administration and Probate Act 1958 s 29.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff
For the Second Defendant	Ms K Bradey	Colin Biggers & Paisley
For the Third Party	Mr J Ruskin QC with Mr R Stanley	Mills Oakley

HIS HONOUR:

The issue I must determine is whether the second defendant (‘Seltsam’) is entitled to contribution and/or indemnity from the third party (‘Amaca’) in respect of any, and if so what amount, of $380,000 inclusive of costs and disbursements Seltsam paid to settle the claim made by the plaintiff John Benzie (‘Benzie’) against it and Seltsam’s costs of defending that claim.

In the principal proceeding Benzie alleged that he was exposed to asbestos between 1967 and 1979 when employed by Seltsam as a storeman, materials controller and manager. In particular, Benzie alleged that during his employment by Selstam he was exposed to asbestos in, and emanating from, Seltsam’s asbestos manufacturing factory in Mcintyre Road, Sunshine, and from asbestos waste at the rear of the factory.

Seltsam manufactured and supplied asbestos cement products at and from the factory until 31 July 1977 and Amaca manufactured and supplied asbestos cement products at and from the factory at relevant times on and from 1 August 1977.

On 7 May 2018, Benzie issued a generally endorsed writ naming Amaca, Seltsam, and two other parties as defendants claiming damages for personal injuries including mesothelioma suffered as a consequence of his exposure to asbestos dust, particles and fibres caused by the negligence of and breach of statutory duty by each of those defendants. Benzie never served the writ on Amaca. Having regard to his illness the proceeding was conducted with considerable haste.

Benzie’s statement of claim, when filed, named Seltsam as the only defendant and the court was informed when the matter was listed for an expedited trial that none of the other defendants named in the writ had been served.

The proceeding was mediated on 7 June 2018 and formally settled when a deed of settlement and release was executed on 8 June 2018. The settlement sum was $380,000 inclusive of costs and disbursements. The deed only releases Benzie’s claim…

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: [2019] VSC 312
Decision Date: 14 May 2019

CaseChat Overview and Summary

Seltsmam Pty Ltd sued Amaca Pty Ltd for dust-related diseases. The dispute came before the Supreme Court of Victoria. The plaintiff's claim included compensation for pain and suffering, bodily or mental harm, and loss of life expectancy. The plaintiff died before the trial, and Amaca sought contribution from Seltsmam, which had already paid the plaintiff. The central issue was whether Seltsmam's liability to contribute was limited by statutory provisions, specifically sections 23B, 24 of the Wrongs Act 1958, and section 29 of the Administration and Probate Act 1958.

The court examined the statutes and relevant case law to determine the scope of the statutory provisions and their application to the facts. It found that the statutory provisions did limit Seltsmam's liability to contribute. The court concluded that Seltsmam was not liable to pay more than the amount it had already paid to the plaintiff. The court considered the balance of justice and the intent of the statutes in reaching this decision.

The court's reasoning was grounded in the interpretation of the statutory provisions and their application to the specific circumstances of the case. It found that the statutes did limit Seltsmam's liability to contribute and that the balance of justice did not require a different outcome. The court's decision was based on a careful analysis of the law and the facts of the case. The final orders of the court reflected its decision that Seltsmam was not liable to pay more than the amount it had already paid to the plaintiff.

Orders