Swiatek v Amaca Pty Ltd

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

DUST DISEASES LIST

S CI 2015 05749

HENRY SWIATEK	Plaintiff
v
AMACA PTY LTD (FORMERLY JAMES HARDIE & COY PTY LTD)	First Defendant
and
SELTSAM PTY LIMITED	Second Defendant
and
CSR LIMITED	Third Defendant
and
FOLETCO LIMITED	Fourth Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6 December 2016
DATE OF JUDGMENT:	21 December 2016
CASE MAY BE CITED AS:	Swiatek v Amaca Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2016] VSC 808

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TORTS – Negligence – Contribution proceedings between defendants – Plaintiff’s claim for damages for mesothelioma caused by inhalation of asbestos fibres – Plaintiff’s claim and contribution proceedings against fourth defendant settled – Agreement that there was no difference in negligence of first, second and third defendants – Operation by first, second and third defendants of a factory producing asbestos products – Proportionate contribution of the activities of each defendant to the plaintiff’s injury – Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the First Defendant	Mr J Ruskin QC with Mr M Clark	DLA Piper
For the Second and Third Defendants For the Fourth Defendant	Mr T Casey QC with Ms K Brady No appearance	Colin Biggers and Paisley

HIS HONOUR:

Introduction

1. In this proceeding, the plaintiff claimed damages for the injury malignant mesothelioma, which he suffered by reason of inhalation of asbestos fibres.  The plaintiff’s case against the first, second and third defendants related to exposure to fibres at and emanating from a factory in McIntyre Road, Sunshine (‘the Wunderlich factory’), in the period 1960 to 1984.  The plaintiff’s case against the fourth defendant related to workplace exposure to inhalation of asbestos fibres during employment for a period of some months commencing in late 1977.

1. On about 4 May 2016 the plaintiff’s claim against the defendants settled.  Some time prior to the commencement of the trial on 5 December, the contribution of the fourth defendant was settled at 12.5 per cent.

1. What then remained in dispute at trial was a claim for contribution between the first defendant, Amaca Pty Limited (‘Amaca’) on the one hand and the second and third defendants, Seltsam Pty Limited/CSR Limited (‘Seltsam/CSR’) on the other.  For the purposes of the trial, the parties agreed there was no difference in the negligence of the first, second and third defendants.  In other words, there was no issue as to the first element relevant to apportionment identified by the High Court in Podrebersek v Australian Iron and Steel Pty Ltd, that is ‘the degree of departure from the standard of care of the reasonable man’ or, culpability.[1]  What remained was an assessment of the relative importance of the acts of the remaining defendants in causing the damage suffered by the plaintiff or, as it was put by counsel for the first defendant, the ‘causal potency’ of the negligence of each defendant.…