Duty of care. Does it end?

  • Newsletter Article
  • Published 14.02.2022

Werfel v Amaca Pty Ltd & The State of South Australia (SAET 2019) and subsequent appeal Amaca Pty Ltd v Werfel (SASCFC 2021)

LINK TO WERFEL DECISION

LINK TO AMACA DECISION

Key Takeaways

Werfel v Amaca Pty Ltd & The State of South Australia and subsequent appeal Amaca Pty Ltd v Werfel considered whether asbestos manufacturers owe a duty of care to consumers and end users of its goods. 

Brief Facts

The plaintiff, a 42 year old, commenced proceedings in the South Australian Employment Tribunal naming Amaca Pty Ltd (‘Amaca’) as a Defendant. The plaintiff alleged that his rare form of mesothelioma was caused by the inhalation of asbestos fibres whilst working as a fencing contractor between 1994 and 1997 where he inhaled asbestos dust from cutting and drilling corrugated asbestos cement sheets and capping manufactured by Amaca. 

The plaintiff was further exposed whilst undertaking maintenance work and DIY home renovations where he cut, drilled and sanded flat asbestos cement sheets and planks manufactured by Amaca at two properties he owned in Adelaide between 2000 and 2005.

Amaca joined the State of South Australia (‘the Housing Trust’) as a Cross-Defendant, with this claim ultimately being dismissed.

The Court held that Amaca, as a manufacturer of asbestos cement building products, owed a duty of care to consumers and the end users of its goods. This included the plaintiff both as an employee but also as a DIY home renovator who did maintenance work on his properties. 

It was noted that the probability of a risk occurring was certain and Amaca had knowledge of the rising numbers of deaths. The Court suggested that Amaca had resources that they should have utilised in order to minimise the risk of death and illness to this class of users.

Amaca’s failure to warn the public about the risks associated with its products resulted in the public having continued exposure to asbestos fibres without their knowledge. Amaca’s failure to educate the general population as to identification of potentially asbestos containing products had constituted a breach of duty to the class of persons including the plaintiff. 

Amaca sought special leave to appeal to the HCA.

Judgment

The HCA refused special leave on the basis that there was an error in whether the duty to warn of in situ asbestos products failed to account for the indeterminacy of the class of persons at risk and the period of the warning.

Her Honour Judge Kiefel stated:

‘This matter raises the question of whether a duty of care was breached by the applicant’s failure sufficiently to warn of dangers inherent in its product that was widely distributed. It falls to be resolved largely as a question of fact. No question of general principle arises. The matter does not warrant the grant of special leave.’

Implications

This case has significant implications for people who were / are exposed to asbestos fibres in their homes, communities and those engaging in DIY home renovations. The case requires companies such as Amaca who have constructive knowledge of the dangers of asbestos to implement appropriate measures to ensure risks of death are minimised, and highlights the continued duty of care to consumers and end users of goods. 
 

Lian Chami

Partner

P: 02 8257 5824

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