Seltsam Pty Ltd v Mcneill

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.