Turner v Bayer Australia Ltd - [2024] VSC 760

IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE
COMMON LAW DIVISION
GROUP PROCEEDINGS LIST
S ECI 2019 02916

PATRICE SARAH TURNER Plaintiff

v

BAYER AUSTRALIA LTD (ACN 000 138 714) & ORS Defendants

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JUDGE:

KEOGH J

WHERE HELD:

Melbourne

DATE OF HEARING:

11–14, 17–21, 24, 26–28 April, 1–4, 8–12, 23–25, 29–31 May, 1–2, 5–9, 13–16, 19–23, 27–28, 30 June, 21, 28, 31 July, 1–4 August 2023

DATE OF JUDGMENT:

10 December 2024

CASE MAY BE CITED AS:

Turner v Bayer Australia Ltd

MEDIUM NEUTRAL CITATION:

[2024] VSC 760

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REPRESENTATIVE ACTION — Implantable medical device — Contraceptive device made from metal alloys and PET fibre — Device designed to incite inflammatory response in fallopian tube to cause development of fibrosis resulting in tubal occlusion and sterilisation — Whether the device had an inherent defect in that it caused ongoing chronic inflammation in a not insignificant number of women, resulting in adverse events of chronic pelvic pain and abnormal uterine bleeding — General causation not established — Plaintiff’s symptoms likely caused by adenomyosis — Whether there were risks that the device could migrate, be expulsed, break or fragment, corrode, fatigue, perforate organs and/or leach nickel or other metals resulting in new or increased pain, new or increased menstrual bleeding and/or damage to internal organs — Whether resolution of any adverse event associated with the device was likely to require surgical removal of uterus or fallopian tubes — Some risks established — Degree and magnitude of proven risks.
CONSUMER LAW — Whether devices had a ‘defect’ within the meaning of s 75AC of the Trade Practices Act 1974 (Cth) or a ‘safety defect’ within the meaning of s 9 of the Australian Consumer Law — Significance of supply of devices via gynaecologists — Whether defendants failed to warn doctors or patients of certain risks or potential complications and the gravity of complications — Whether state of scientific or technical knowledge at time of supply not such as to enable defects to be discovered — Ethicon Sàrl v Gill (2021) 288 FCR 338 — Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145— Adequate warnings and information given about established risks — Goods not defective.
CONSUMER LAW — Whether devices not of ‘merchantable quality’ within the meaning of s 74D of the Trade Practices Act 1974 (Cth) or ‘acceptable quality’ within the meaning of s 54 of the Australian Consumer Law — Expectations of reasonable consumer of medical device — Medtel Pty Ltd v Courtney (2003) 130 FCR 182 — Lack of merchantable quality not established.
CONSUMER LAW — Where goods manufactured by foreign defendants in same corporate group and supplied by local corporations — Where foreign defendants had no place of business in Australia but impugned conduct took place in Australia — Whether foreign defendants can be found liable for contraventions of the Trade Practices Act 1974 (Cth) and the Australian Consumer Law — Whether certain conduct of foreign defendants was ‘in trade or…

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 Turner v Bayer Australia Ltd

Details

AGLC: Turner v Bayer Australia Ltd [2024] VSC 760
Case: [2024] VSC 760
Decision Date: 10 December 2024

CaseChat Overview and Summary

In Turner v Bayer Australia Ltd, the plaintiff, Ms Turner, brought an action against Bayer Australia Ltd and its parent companies, alleging defects and failures in the design, manufacture, and marketing of the Essure contraceptive device. The device, an implantable contraceptive, was designed to cause inflammation leading to fibrosis and sterilisation. Ms Turner claimed the device caused her chronic pelvic pain and abnormal uterine bleeding, and that the defendants failed to warn her and other women of the risks associated with the device.

The court was tasked with determining whether the Essure device had inherent defects, whether it was defective under consumer law, whether it was of merchantable quality, and if the defendants were liable under Australian law despite being foreign entities. The court also examined whether the defendants were negligent in their development, design, and marketing of the device, and if the plaintiff's claims were statute-barred.

The court found that while some risks associated with the Essure device were established, the plaintiff failed to prove that the device had an inherent defect that caused her symptoms. The court held that adequate warnings and information were provided about established risks, and the devices were not defective under consumer law. The court also ruled that the foreign defendants could be held liable for their conduct in Australia and that the plaintiff's claims regarding the supply of the device before 13 July 2004 were statute-barred, as were claims regarding devices supplied between 13 July 2004 and 28 June 2007.

The court dismissed the plaintiff's claims, finding that she had not established a breach of duty by the defendants, and that the defendants were not negligent in their marketing and distribution of the Essure device. The court concluded that the plaintiff's claims were statute-barred for devices supplied before 13 July 2004 and between 13 July 2004 and 28 June 2007.

Orders