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Van Gerven v Amaca Pty Ltd

Van Gerven v Amaca Pty Ltd

Case [2012] VSC 131 13 April 2012

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 10268 of 2008

DEIDRE VAN GERVEN	Plaintiff
v
AMACA PTY LTD	Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 April 2012
DATE OF JUDGMENT:	13 April 2012
CASE MAY BE CITED AS:	Van Gerven v Amaca
MEDIUM NEUTRAL CITATION:	[2012] VSC 131

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LIMITATION OF ACTIONS – Negligence – Product liability – Asbestos – Whether limitation period should be extended – Limitation of Actions Act 1958, s 23A – Wrongs Act 1958, s 20.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J.R.C. Gordon	Slater & Gordon
For the Defendant	Mr S.J. Moloney	DLA Piper Australia

HIS HONOUR:

Introduction

On 12 December 2008, Deidre Van Gerven, the plaintiff, commenced proceedings against Amaca Pty Ltd and NEI Pacific Limited claiming damages in respect of the death of her husband, Thomas Cornelis Van Gerven. Mr Van Gerven died from mesothelioma on 1 June 1997.

The plaintiff brings the present proceeding on behalf of the estate of Mr Van Gerven pursuant to s 29 of the Administration and Probate Act 1958, and on her own behalf pursuant to Part III of the Wrongs Act 1958. In summary, the plaintiff contends that Mr Van Gerven’s mesothelioma was caused by his exposure to asbestos in the course of his employment between approximately 1959 and 1960 with NEI Pacific Limited, then known as John Thompson (Australia) Pty Ltd. The plaintiff contends that the asbestos to which Mr Van Gerven was exposed was manufactured and/or supplied by Amaca. The claims pleaded against Amaca are claims in negligence. In March 2012, the plaintiff discontinued proceedings against NEI Pacific. Amaca is now the sole defendant.

By its defence, Amaca pleads (amongst other defences) that the plaintiff’s cause of action against it is barred “by virtue of the operation of the Limitation of Actions Act 1958 (Vic)”.[1] By summons filed 27 August 2009, Amaca sought an order that its limitation defence be tried before the trial of the proceeding pursuant to Rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2005. By summons filed 3 February 2010, the plaintiff sought an order that “The period of limitation applicable to the cause of action relied upon by the plaintiff pursuant to s 29 of the Administration and Probate Act 1958 (Vic) in this proceeding be extended up to and including 12 December 2008 in accordance with s 27K of the Limitation of Actions Act 1958 (Vic)”.
[1]See paragraph 18 of Amaca’s defence dated 5 February 2009.

On 11 February 2010, Williams J heard the trial of the preliminary question of whether the plaintiff’s causes of action were statute barred. On 1 June 2010, her Honour delivered reasons upholding Amaca’s contentions that the plaintiff’s causes of action were statute barred. In her reasons, her Honour concluded that the limitation period in respect of the plaintiff’s causes of action commenced “at the latest” on the date of Mr Van Gerven’s death, 1 June 1997.…

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 Van Gerven v Amaca Pty Ltd

Details

AGLC: Van Gerven v Amaca Pty Ltd [2012] VSC 131
Case: [2012] VSC 131
Decision Date: 13 April 2012

CaseChat Overview and Summary

The matter of Van Gerven v Amaca Pty Ltd was heard in the Supreme Court of Victoria. The plaintiff, Mr Van Gerven, sought damages for injuries caused by exposure to asbestos-containing products manufactured by Amaca Pty Ltd. The dispute centred around the applicability of statutory limitation periods to Mr Van Gerven's claim and whether any provision of law allowed for an extension of these periods. The court was required to interpret sections 23A of the Limitation of Actions Act 1958 and section 20 of the Wrongs Act 1958, in light of the particular circumstances of Mr Van Gerven's case.

The court addressed whether the statutory limitation periods for actions in negligence and product liability should be extended in this case, given the unique and delayed nature of the injuries caused by asbestos exposure. The primary issue was whether the statutory provisions allowed for a departure from the usual limitation periods when dealing with cases of latent injuries, such as those caused by asbestos. The court also considered whether Mr Van Gerven's knowledge of the injury and its cause could be deemed to have occurred within the statutory period.

In delivering the judgment, the court held that the statutory limitation periods should not be extended in this case. The court found that the provisions of the Limitation of Actions Act 1958 and the Wrongs Act 1958 did not permit an extension of the limitation periods for actions in negligence and product liability, especially in cases involving latent injuries such as asbestos exposure. The court emphasised the importance of maintaining the integrity of statutory limitation periods and rejected the argument that Mr Van Gerven's claim should be allowed to proceed despite the limitation period having expired. Consequently, the court dismissed the plaintiff's claim on the grounds that it was statute-barred.

Orders