Amaca Pty Ltd (under NSW administered winding up) v Pfeiffer & Ors [2017]

In November 2017, the Supreme Court of South Australia handed down an important decision about apportionment between defendants and third parties in asbestos cases.

2 asbestos exposures

The plaintiff, Mr Pfeiffer, was exposed to asbestos in two periods. He subsequently contracted mesothelioma and brought a claim in relation to the two exposures. The first was exposure to asbestos cement sheets he cut up and used on his own home. The second was exposure to asbestos insulation materials when he was employed by World Services Pty Limited performing maintenance work at the ICI factory at Osborne.

Mr Pfeiffer sued Amaca Pty Limited (formerly James Hardie & Coy Pty Limited) in relation to the first period of his exposure and World Services (his employer) in relation to the second period of his exposure.

World Services filed a claim for contribution against ICI, who owned the site where Mr Pfeiffer was exposed, as well as Bells Asbestos and Engineering who supplied the insulation materials. CSR, who jointly manufactured at least a portion of the asbestos insulation materials to which Mr Pfeiffer was exposed with James Hardie, were also joined to the proceedings.

The claim between Mr Pfeiffer and the defendants settled but the claim between the defendants and the third parties as to apportionment ran to judgment in the District Court of South Australia. The judgment of the District Court was appealed to the Full Court of the Supreme Court of South Australia, who handed down a decision in November 2017.

One of the issues before the Court was the breadth of section 8(2) of the Dust Diseases Act 2005 (SA).

Section 8(2) states that after 1940 for manufacturers of asbestos products (such as James Hardie and CSR) and after 1960 for other companies carrying on a prescribed industrial or commercial process and who employed over twenty people at the time, the company is presumed to have known at the time that exposure to asbestos dust was dangerous.

This section is well established to apply in cases between plaintiffs and defendants. The issue before the Court in Pfeiffer however was whether section 8(2) would equally apply to other proceedings, for example in contribution proceedings.

In the original judgment, the District Court found that section 8(2) did not operate in respect of contribution claims, but only claims between plaintiffs and defendants. The trial judge reasoned that given knowledge of the dangers of asbestos goes to the relative culpability of defendants in contribution proceedings, the presumption of knowledge under section 8(2) could not be relied upon to increase a defendant’s level of culpability. The Full Court granted the appeal in this respect, finding that section 8(2) does operate as between defendants and third parties in contribution proceedings.

However, on balance, the Supreme Court upheld the contribution amounts between each party as originally apportioned by the trial judge.

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