Turner v Bayer Australia Ltd (No 4) - [2023] VSC 107

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:	28 February 2023
DATE OF RULING:	7 March 2023
CASE MAY BE CITED AS:	Turner v Bayer Australia Ltd (No 4)
MEDIUM NEUTRAL CITATION:	[2023] VSC 107 (First revision 6 November 2023)

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PRACTICE AND PROCEDURE — Summons to strike out defence — Pleadings — State of scientific and technical knowledge defence — Trade Practices Act 1974 (Cth), s 75AK(1)(c) — Competition and Consumer Act 2010 (Cth), Schedule 2, s 142(c) — Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145 — Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307 — Gill v Ethicon Sàrl & Ors (No 5) [2019] FCA 1905.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	F Forsyth KC with E Levine	Slater & Gordon
For the First to Fourth and Sixth Defendants	K Brazenor	Clayton Utz
For the Fifth Defendant	N Connell (as solicitor)	Mills Oakley

HIS HONOUR:

This representative proceeding is a product liability action concerning implanted permanent contraceptive medical devices identified collectively as the Essure device. The plaintiff brings the proceeding on behalf of all women who have had an Essure device implanted and suffered harm as a result. She claims damages for breach of the Australian Consumer Law[1] (‘ACL’) and Trade Practices Act 1974 (Cth)[2] (‘TPA’), and in negligence based on allegations of defective design and failure to warn.
[1]Competition and Consumer Act 2010 (Cth), sch 2.
[2]Trade Practices Act 1974 (Cth).

The proceeding is listed for trial on an estimate of 12 weeks commencing on 11 April 2023.

One of the claims made by the plaintiff is that the Essure device had a defect within the meaning of s 75AC of the TPA and/or a safety defect within the meaning of s 9 of the ACL.

The first to fourth and sixth defendants (‘Bayer and AMSL defendants’) and the fifth defendant plead the defence in s 75AK(1)(c) of the TPA and s 142(c) of the ACL (‘state of scientific knowledge defence’). On 9 February 2023, I made orders requiring the defendants to provide further particulars of that defence.

The plaintiff has applied to strike out the state of scientific knowledge defence on grounds that the defendants’ pleadings do not disclose a defence and/or that the pleading may prejudice, embarrass or delay the trial of the proceeding.

Procedural history

The writ commencing the proceeding was filed by the plaintiff on 28 June 2019.

The plaintiff filed a statement of claim on 20 December 2019, and an amended statement of claim (‘ASOC’) on 23 December 2022.

The Bayer and AMSL defendants filed their defence on 11 September 2020.

The fifth defendant filed its defence on 15 September 2020.

The plaintiff served extensive further…

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 (No 4)

Details

AGLC: Turner v Bayer Australia Ltd (No 2) [2023] VSC 107
Case: [2023] VSC 107
Decision Date: 7 March 2023

CaseChat Overview and Summary

Turner v Bayer Australia Ltd (No 4) involved a dispute concerning the pharmaceutical product, Xarelto, manufactured by Bayer Australia Ltd. The plaintiff, Turner, alleged that he suffered severe injuries due to the use of Xarelto, and sought damages under the Trade Practices Act 1974 and the Competition and Consumer Act 2010. Bayer Australia Ltd denied liability, arguing that the state of scientific and technical knowledge at the time of the incident absolved them from responsibility. The case was heard in the Federal Court of Australia.

The primary legal issue was whether the state of scientific and technical knowledge could be considered a defence against the plaintiff's claim. The court needed to determine if Bayer Australia Ltd could rely on this defence in light of the provisions of the Trade Practices Act and the Competition and Consumer Act. Relevant case law, including Merck Sharp & Dohme (Australia) Pty Ltd v Peterson, Graham Barclay Oysters Pty Ltd v Ryan, and Gill v Ethicon Sàrl & Ors (No 5), provided guidance on the interpretation of the legislative provisions and the applicability of scientific and technical knowledge as a defence.

The court examined the legislative framework and the relevant case law to ascertain whether the state of scientific and technical knowledge could mitigate liability under the Trade Practices Act and the Competition and Consumer Act. It was determined that the defence could only be invoked if the state of knowledge at the time of the incident was such that no reasonable person in the position of the manufacturer could have been expected to be aware of the risk. The court concluded that Bayer Australia Ltd had not provided sufficient evidence to demonstrate that they could rely on this defence. Consequently, the summons to strike out the defence was upheld, and the case proceeded to trial.

In light of the above, the court dismissed Bayer Australia Ltd's defence based on the state of scientific and technical knowledge. The case will now proceed to trial, where the plaintiff will have the opportunity to present their case and seek damages for the injuries allegedly caused by Xarelto.

Orders