SELTSAM Pty Ltd v McNEILL [2006] NSWCA 158

New South Wales Court of Appeal

CITATION: SELTSAM Pty Ltd v McNEILL [2006] NSWCA 158 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15/12/05

JUDGMENT DATE: 26 June 2006

JUDGMENT OF: Handley JA at 1; Tobias JA at 8; Bryson JA at 9

DECISION: 1. Appeal allowed with costs; 2. Set aside the decision verdict and judgment of the Dust Diseases Tribunal of 5 September 2005, and in lieu thereof give judgment for the defendant in the Tribunal with costs.; 3. The parties are directed to file in the Registry within 7 days their agreed orders dealing with restitution.; 4. If there is no agreement and agreed orders are not filed, the appeal will be listed before Bryson JA at 9.30am on 4 July 2006 for directions relating to restitution.; 5. The respondent to have a certificate under the Suitors' Fund Act 1951.

CATCHWORDS: NEGLIGENCE - liability of manufacturer to end user - asbestos cement sheeting - in 1961 the plaintiff, a priest, worked with asbestos cement sheeting purchased retail by a relative and manufactured by defendant and was exposed to asbestos dust and fibres - work totalled about 12 hours over several days - extension to his sister's house - no other exposure to asbestos dust and fibre apart from ordinary environmental exposure - in 2003 plaintiff became ill and mesothelioma diagnosed - Dust Diseases Tribunal found, on extensive review of evidence including publications about knowledge of risks related to asbestos in 1961, that defendant owed duty of care to plaintiff and was in breach by failing to print warning on each sheet - on review of evidence, held that the conclusion, on test in Shirt v Wyong S.C. that there was a foreseeable risk of injury to class of persons including the plaintiff and hence a duty of care to the plaintiff, on state of available knowledge in 1961, was not reasonably available - held no duty of care - consideration of establishing relevant class of persons for purposes of foreseeability and casual end users not conflated with persons more intensely exposed in industrial occupations - consideration of Trial Judge's decision on need to print warning on sheets - admissibility of plaintiff's evidence on how a warning would have affected his conduct.