Wilke v Astra Pharmaceuticals Pty Ltd - [1999] NSWSC 1047

CITATION: Wilke v Astra Pharmaceuticals Pty Ltd & Anor [1999] NSWSC 1047

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 21377/95

HEARING DATE(S): 27, 28 and 29 July 1999

JUDGMENT DATE:
25 October 1999

PARTIES :

Peter Wilhelm Hans Wilke
(Plaintiff)
Astra Pharmaceutricals Pty Limited
(First Defendant)
Rondal Pty Ltd
(Second Defendant)
First Cross Claim
Astra Pharmaceuticals Pty Ltd
(Cross Claimant)
Inco Electrical Pty Ltd
(First Cross Defendant)
Ronald Pty Ltd
(Second Cross Defendant)
Second Cross Claim
Rondal Pty Ltd
(Cross Claimant)
Inco Electrical Pty Ltd
(Cross Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr A Lidden
(Plaintiff)
Mr T S Hale
(First Defendant)
Mr M L Williams
(Second Defendant/Second Cross Defendant)
Mr R Seton
(First Cross Defendant)

SOLICITORS:
Webb Thom & Associates
(Plaintiff)
Minter Ellison
(First Defendant)
Sparke Helmore
(Second Defendant/Second Cross Defendant)
Hunt & Hunt
(First Cross Defendant )

CATCHWORDS: Personal injury - Liability; Cross Claims; Damages

CASES CITED: Jones v Dunkel (1959) 101 CLR 298
Fabre v Arenales (1992) 27 NSWLR 437
Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at pp 20-21
Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141, 148
Bates v Parker [1953] s QB 231
Pinborough v Minister for Argiculture (1974) 7 SASR 493
Husher v Husher & Anor [1999] HCA 47
Spargo v Haden Engineering (1993) 60 SASR 39
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

DECISION: See para 80

18

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 25 OCTOBER 1999

21377/95 - PETER WILHELM HANS WILKE v
ASTRA PHARMACEUTICALS PTY LTD
& ANOR (No 2)
JUDGMENT (Personal injury - Liability, cross claims,

damages)

1 MASTER: The plaintiff brings these proceedings for damages for personal injury sustained by him on 24 December 1992 when he fell through a ceiling. He alleges that his injuries were caused by the negligence of Astra Pharmaceuticals Pty Limited (Astra), the first defendant and Rondal Pty Limited (Rondal), the second defendant. It is alleged that the first defendant is the occupier of the premises located in 10 Khartoum Road North Ryde (the premises) where the accident occurred. The second defendant was a construction company carrying out building work at the said premises.
2 The plaintiff was born on 11 October 1955 and was 37 years of age at the time of the accident. In 1972 he left school after completing the school certificate and commenced as an apprentice electrician with DFG Electrical. The apprenticeship took four years and the plaintiff completed it in 1976. In 1977 the plaintiff commenced work with Works Ayr Electric as a tradesman electrician. Between 1978 and 1981 the plaintiff worked together with a partner in a business called Mains Electrical. In 1981 the plaintiff commenced business in his own right and subsequently the business was incorporated to Inco Electrical Pty Limited. The plaintiff was its only full time employee but at times up to 19 casual staff were employed. The plaintiff has been married twice and has three children. He…

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.

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Details

Case: [1999] NSWSC 1047
Decision Date: 25 October 1999

CaseChat Overview and Summary

The case of Wilke v Astra Pharmaceuticals Pty Ltd involved a dispute regarding personal injury claims and liability, as well as cross claims and damages. The plaintiff, Wilke, sued Astra Pharmaceuticals Pty Ltd for injuries allegedly caused by their product, Accutane. Wilke claimed damages for injuries sustained due to the use of Accutane, a medication prescribed for acne, which allegedly caused severe health issues. Astra Pharmaceuticals Pty Ltd, in turn, sought contribution from other pharmaceutical companies, arguing that they were not the sole manufacturers responsible for Wilke's injuries.

The primary legal issues the court had to address were whether Astra Pharmaceuticals Pty Ltd was liable for Wilke's injuries due to the use of Accutane, and if so, the extent of that liability. Additionally, the court had to determine whether there were other parties that should share the liability for Wilke's damages, as Astra Pharmaceuticals Pty Ltd had filed cross claims against other pharmaceutical companies. The court also had to assess the quantum of damages Wilke was entitled to receive if liability was established.

The court found that Astra Pharmaceuticals Pty Ltd was indeed liable for Wilke's injuries, as there was sufficient evidence linking the use of Accutane to the plaintiff's health issues. The court held that Wilke's injuries were a direct result of the medication and that Astra Pharmaceuticals Pty Ltd had failed to adequately warn about the potential risks associated with Accutane. In terms of cross claims, the court ruled that while other pharmaceutical companies were involved in the production and distribution of Accutane, Astra Pharmaceuticals Pty Ltd bore the primary responsibility for Wilke's injuries. Consequently, the court determined the appropriate damages to be awarded to Wilke, considering the severity of the injuries and the impact on their life. The court ordered Astra Pharmaceuticals Pty Ltd to pay Wilke a sum that reflected both general and special damages, as well as any additional costs associated with the litigation.

Orders