New South Wales
Court of Appeal
CITATION: SELTSAM Pty Ltd v McNEILL [2006] NSWCA 158
This decision has been amended. Please see the end of the judgment for a list of the amendments.HEARING DATE(S): 15/12/05
JUDGMENT DATE:
26 June 2006JUDGMENT OF: Handley JA at 1; Tobias JA at 8; Bryson JA at 9 DECISION: 1. Appeal allowed with costs; 2. Set aside the decision verdict and judgment of the Dust Diseases Tribunal of 5 September 2005, and in lieu thereof give judgment for the defendant in the Tribunal with costs.; 3. The parties are directed to file in the Registry within 7 days their agreed orders dealing with restitution.; 4. If there is no agreement and agreed orders are not filed, the appeal will be listed before Bryson JA at 9.30am on 4 July 2006 for directions relating to restitution.; 5. The respondent to have a certificate under the Suitors' Fund Act 1951. CATCHWORDS: NEGLIGENCE - liability of manufacturer to end user - asbestos cement sheeting - in 1961 the plaintiff, a priest, worked with asbestos cement sheeting purchased retail by a relative and manufactured by defendant and was exposed to asbestos dust and fibres - work totalled about 12 hours over several days - extension to his sister's house - no other exposure to asbestos dust and fibre apart from ordinary environmental exposure - in 2003 plaintiff became ill and mesothelioma diagnosed - Dust Diseases Tribunal found, on extensive review of evidence including publications about knowledge of risks related to asbestos in 1961, that defendant owed duty of care to plaintiff and was in breach by failing to print warning on each sheet - on review of evidence, held that the conclusion, on test in Shirt v Wyong S.C. that there was a foreseeable risk of injury to class of persons including the plaintiff and hence a duty of care to the plaintiff, on state of available knowledge in 1961, was not reasonably available - held no duty of care - consideration of establishing relevant class of persons for purposes of foreseeability and casual end users not conflated with persons more intensely exposed in industrial occupations - consideration of Trial Judge's decision on need to print warning on sheets - admissibility of plaintiff's evidence on how a warning would have affected his conduct. LEGISLATION CITED: Dust Diseases Tribunal Act 1989 (NSW) ss. 25(3), 32(1)
Evidence Act 1995 (Cth) s.76
Evidence Act 1995 (NSW) ss.76, 77, 78 and 79
Factories Act 1937 (UK) s.47
Supreme Court Act 1970 (NSW) s.75ACASES CITED: All State Life Insurance Co. v Australia and New Zealand Banking Group Ltd (No.5) (1996) 64 FCR 73
Bourhill v Young [1943] AC 92, 98-9, 101, 102, 104, 106, 108 and 117
Bradley v James Hardie & Coy Pty Ltd & Anor DDT 58 of 1995
Bunyan v Jordan (1937) 57 CLR 1, 11-12
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202
Chester v Waverley Corporation (1939) 62 CLR 1, 33
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Details
- AGLC
- Seltsam Pty Ltd v Mcneill [2006] NSWCA 158
- Case
- [2006] NSWCA 158
- Decision Date
CaseChat Overview and Summary
The appeal concerned the liability of Seltsam Pty Ltd (the manufacturer) to a priest (the plaintiff) who contracted mesothelioma. The plaintiff had worked with asbestos cement sheeting manufactured by Seltsam for approximately 12 hours over several days in 1961, extending his sister's house. This was his only significant exposure to asbestos dust and fibres, apart from general environmental exposure. In 2003, the plaintiff was diagnosed with mesothelioma. The Dust Diseases Tribunal had found that Seltsam owed a duty of care to the plaintiff and had breached that duty by failing to print a warning on its asbestos cement sheets, based on its review of evidence regarding the knowledge of asbestos risks in 1961.
The primary legal issue before the Court of Appeal was whether, on the state of knowledge in 1961, there was a foreseeable risk of injury to a class of persons that included the plaintiff, thereby establishing a duty of care owed by the manufacturer to him. This involved considering whether the risk of injury to casual end-users, such as the plaintiff, was sufficiently foreseeable, distinct from the risks faced by those in industrial occupations with more intense exposure. The court also considered the Trial Judge's conclusion regarding the necessity of printing warnings on the sheets and the admissibility of evidence concerning how such a warning might have influenced the plaintiff's conduct.
The Court of Appeal, applying the test from *Shirt v Wyong S.C.*, held that the conclusion of a foreseeable risk of injury to a class of persons including the plaintiff, based on the available knowledge in 1961, was not reasonably available. The court reasoned that the class of persons who might be exposed to asbestos dust from the sheeting was too broad and indeterminate, and the risk of injury to casual users was not sufficiently foreseeable at that time to impose a duty of care on the manufacturer. Consequently, the court found that no duty of care was owed by Seltsam to the plaintiff.
The appeal was allowed with costs. The decision, verdict, and judgment of the Dust Diseases Tribunal were set aside, and judgment was entered for the defendant (Seltsam Pty Ltd) in the Tribunal with costs. Directions were also given regarding restitution and the potential listing of the matter for further directions if no agreement was reached between the parties.
The primary legal issue before the Court of Appeal was whether, on the state of knowledge in 1961, there was a foreseeable risk of injury to a class of persons that included the plaintiff, thereby establishing a duty of care owed by the manufacturer to him. This involved considering whether the risk of injury to casual end-users, such as the plaintiff, was sufficiently foreseeable, distinct from the risks faced by those in industrial occupations with more intense exposure. The court also considered the Trial Judge's conclusion regarding the necessity of printing warnings on the sheets and the admissibility of evidence concerning how such a warning might have influenced the plaintiff's conduct.
The Court of Appeal, applying the test from *Shirt v Wyong S.C.*, held that the conclusion of a foreseeable risk of injury to a class of persons including the plaintiff, based on the available knowledge in 1961, was not reasonably available. The court reasoned that the class of persons who might be exposed to asbestos dust from the sheeting was too broad and indeterminate, and the risk of injury to casual users was not sufficiently foreseeable at that time to impose a duty of care on the manufacturer. Consequently, the court found that no duty of care was owed by Seltsam to the plaintiff.
The appeal was allowed with costs. The decision, verdict, and judgment of the Dust Diseases Tribunal were set aside, and judgment was entered for the defendant (Seltsam Pty Ltd) in the Tribunal with costs. Directions were also given regarding restitution and the potential listing of the matter for further directions if no agreement was reached between the parties.
Orders
Orders of the court
1. Appeal allowed with costs; 2. Set aside the decision verdict and judgment of the Dust Diseases Tribunal of 5 September 2005, and in lieu thereof give judgment for the defendant in the Tribunal with costs.; 3. The parties are directed to file in the Registry within 7 days their agreed orders dealing with restitution.; 4. If there is no agreement and agreed orders are not filed, the appeal will be listed before Bryson JA at 9.30am on 4 July 2006 for directions relating to restitution.; 5. The respondent to have a certificate under the Suitors' Fund Act 1951.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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