Brown v Seltsam Pty Limited [2025] QSC 180

• [1] On 3 June 2025, after a civil jury trial, judgment was entered in favour of the plaintiff ordering that the defendant pay the sum of $1,602,313.00.
• [2] On 4 April 2025, the plaintiff made an offer pursuant to r 353 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) to settle her action for a sum of $900,000 plus costs. The defendant did not accept that offer.
• [3] Rule 360 UCPR provides:

(a) the plaintiff makes an offer that is not accepted by the defendant; and

(b) the plaintiff obtains an order no less favourable than the offer; and

(c) the court is satisfied that the plaintiff was at all material times willing and able to carry out what was proposed in the offer.

(2) Unless the defendant shows another order for costs is appropriate in the circumstances, the court must order the defendant to pay the plaintiff's costs -

(a) calculated on the standard basis, up to and including the day of service of the offer; and

(b) calculated on the indemnity basis, after the day of service of the offer.

• [4] The plaintiff therefore seeks an order pursuant to r 360(2) of the UCPR that the defendant should be ordered to pay the plaintiff's costs:

(a) on the standard basis up to and including 4 April 2025; and

(b) on the indemnity basis from 5 April 2025.

(a) the offer was made in accordance with r 353 UCPR;

(b) the offer was not accepted by the defendant;

(c) the verdict was not less favourable in accordance with r 360(1)(a) UCPR; and

(d) the plaintiff was at all material times willing and able to carry out the offer in accordance with r 360(1)(b) UCPR.

• [6] The defendant contends that "another order for costs is appropriate in the circumstances" in accordance with r 360(2) and seeks an order that the defendant pay the plaintiff's costs on a standard basis.
• [7] These reasons proceed on the basis that, unless the defendant shows another order for costs is appropriate in the circumstances, the court "must order" costs on the basis sought by the plaintiff at paragraph [4] above.[1]
• [8] The defendant relies upon the following factors as representing a significant change in the plaintiff's case after the offer was made.
• [9] The first was a change to the pleading. The plaintiff was given leave to file an amended statement of claim updating the quantum of the claim so that the quantum of the pleading was consistent with the amended statement of loss and damage. The amendments to the quantum of the claim were not generally significant and were not opposed.
• [10] The plaintiff did however make amendments to the statement of claim relevant to the liability case by amending paragraphs 4A, 4B and 8(d) by statement of claim filed 14 May 2025, and then sought leave in relation to those amendments on the first day of the trial. The defendant did not object to the grant of leave in respect of paragraphs 4A and 4B but did oppose the amendment to paragraph 8(d). That amendment was to include the underlined words below:

"8. At all material times from about 1962 to 1989, the Defendant knew or ought to have known:

(d) That respirable asbestos dust and fibre caused lung injury and lung disease, including mesothelioma."

• [11] That amendment, which was allowed, also formed part of one of the questions to the jury as follows:

"Whether Seltsam knew or ought to have known that the exposure to asbestos dust and fibre in Ms Brown's circumstances, as found in answers to 4.1 to 4.3, could cause lung disease or a lung condition, including mesothelioma."

• [12] The defendant maintains that the words "lung disease and lung injury" were not defined and could have taken on a very wide meaning for the jury. Furthermore, the defendant submits that the amendment was an expansion on the question of foreseeability on a much wider compass of injuries that had been pleaded at the time of the offer.
• [13] The plaintiff contends that the amendment did not add any new material fact and at most, the amendment of paragraph 8(d) was a "refinement to reflect the true legal position regarding the characterisation of the class of harm".
• [14] As the matter was conducted before a jury, there are no reasons. The court is unable to identify therefore whether the words "lung injury and lung disease" in fact had a substantial effect on the jury's considerations or not. As a matter of law however, when I allowed the amendment on the first day of the trial, I proceeded on the basis that the particular character of the injury did not need to be foreseeable, rather only that the kind or type of injury needed to be foreseeable. So, whilst I accept that the issue of foreseeability was, in truth, the primary defence of the defendant, I did not consider that change to paragraph 8(d), represented a change to the case which the defendant could not meet.
• [15] Further, whilst I accept that if the changes made to the statement of claim were substantial, that might be a basis to make another order, other than that under r 360. However, where changes to the statement of claim are really refinements to the existing case and do not include any new allegations of fact, such may not be the case.[2]
• [16] Of particular relevance in relation to this issue is, as the plaintiff submits, the defendant's liability expert Yanel Lara, who was originally asked to give her opinion as to the state of scientific knowledge "of the risk of injury to persons who were exposed to asbestos". Ms Lara was not asked to limit her assessment of the risk to mesothelioma. Furthermore, after the amendment was allowed and Ms Lara provided a supplementary report, her opinion in relation to risk of injury remained unchanged, demonstrating, the plaintiff submits, and I accept, that the change to the statement of claim did not substantially alter the case.
• [17] Finally, I refer to the fact that when the amendment was sought, the defendant did not contend that the amendment created any particular prejudice such that the trial could not proceed. Rather the defendant contended that it needed to take some further evidence from Ms Lara responding to that more general risk of lung injury and lung disease. Given that the defendant did so seek that further evidence, and the evidence of the expert did not change, I do not consider that the amendment to the statement of claim is a reason to depart from the usual order.

(a) supplementary report of Michael Kottek dated 19 May 2025;

(b) report of George Curry exhibited to an affidavit dated 13 May 2025;

(c) supplementary report of Dr Andrew Rosenstengal dated 7 May 2025;

(d) supplementary report of Stephen Hoey dated 11 May 2025; and

(e) supplementary report of Stephen Hoey dated 16 May 2025.

• [19] While the defendant contends that each of the above reports were important in the defendant's evaluation of the merits of the plaintiff's case, its written submissions concentrate only upon the evidence of Michael Kottek.
• [20] Mr Kottek is an occupational hygienist. In his third report, which preceded the supplementary report referred to above, he had described that in the period between 1965 to 1987 there was uncertainty regarding the exposure to asbestos required to induce mesothelioma and as such concluded that it was foreseeable in that period that end-users of asbestos cement were at "some risk of disease".
• [21] Further, Mr Kottek stated in his third report that:

"In my opinion by 1972/73 there was a recognition that action was warranted in the face of uncertainty regarding the risk of mesothelioma arising from the use of asbestos."

• [22] Mr Kottek was asked to clarify that opinion in conference just prior to the trial. During that conference, Mr Kottek referred to a document of the defendant's, of which he had become aware in other, quite separate, proceedings.[3] That document was dated 18 December 1967 and it contained information about the concerns then existing regarding the hazards to employees, families and local residents, arising out of exposure to asbestos. The document was a memorandum entitled "Asbestosis" from the branch works manager to the board of directors of Wunderlich dated 18 December 1967 which contained the following:

"We wish to bring to your attention our growing concern about the problem of asbestosis, and to recommend that on a company scale we should as a matter of urgency formulate a policy to cope with what we believe could develop into the most serious problem the asbestos cement industry has had to face.

There is no doubt that a great deal more attention is being paid, and will be paid to this industrial disease, and we believe it is imperative that we as a company so vitally concerned with asbestos, should take all steps in our power to keep abreast, or preferably ahead of developments which are obviously going to occur. As an indication of the increasing concern in medical, government, and industrial spheres, we list the following points -

(1) The growing amount of space being devoted to the disease in the medical literature is evidence of the increasing concern in the medical world...

From our point of view, asbestosis presents the following hazards to which we must give most careful considerations -

(1) Firstly, we must consider the hazard to employees...

(2) There is apparently growing evidence to suggest that the hazard is

not confined to employees only, but may possibly be present for

employees families, local residents ... and even for the user of the product..."

• [23] Production of that document then led to the supplementary report of Mr Kottek's referred to above, in which he concluded that, "by no later than 1966, there was sufficient scientific and medical information that indicated action was warranted to manage the risk of mesothelioma in end users of asbestos cement products."
• [24] The defendant contends that Mr Kottek's opinion significantly changed as:

(a) there was not "some risk" anymore;

(b) the risk was now six years earlier than he had assessed in his third report; and

(c) there was no longer any "uncertainty" about the risk of mesothelioma.

• [25] When he was cross-examined on these changes, Mr Kottek did not accept that his opinion had changed but gave evidence that he thought that his earlier report was "poorly expressed".
• [26] It seems likely that the 1967 document must have been in the defendant's possession for many years, the date and provenance of it having been unchallenged. It seems to me to be much more likely that the document itself, rather than Mr Kottek's further report, may itself have been influential about what the defendant knew or ought to have known. The defendant does not suggest that that document was one to which it did not have regard when the plaintiff's offer of 4 April 2025 was made. On the face of the document, never in fact disclosed in these proceedings, the defendant would have had, good reason to re-assess its approach to the plaintiff's prospects on the issue of foreseeability, even without Mr Kottek's further report.
• [27] In the circumstances, I am not prepared to accept that the fresh report from Mr Kottek was a matter of such significance that there is any unfairness to the defendant which would justify another order being made other than that sought by the plaintiff.
• [28] As the balance of the reports listed by the defendant, they were not the subject of any submissions and it is unnecessary to say much about them. Nevertheless, I record that Mr Hoey's supplementary reports, to the extent that they altered the quantum of the plaintiff's claim, did so only marginally and really only for the purposes of bringing the calculations related to the care claim up to date, at the time of the trial.
• [29] I do not accept that any of those reports, alone or in combination, justifies an alternative order.
• [30] The third and last matter upon which the defendant relied was a statement of Pamela Lorenz, the plaintiff's sister, who had died and whose statement was tendered pursuant to s 92(1)(b)(i) of the Evidence Act 1977 (Qld). Ms Lorenz's statement had not been disclosed to the defendant at the time of the offer in April 2025. It is asserted that Ms Lorenz's statement was important to the defendant's evaluation of the merits of the plaintiff's case, it going to the issue of exposure and the purchase of products from the Clifton Hardware where the defendant's products were allegedly sold. Although the assertion is made that the offer was important in the defendant's evaluation of the merits of the plaintiff's claim, there is no evidence offered to me as to why that statement was important and the extent to which it did or did not influence the defendant's decision-making. In my view, having heard the evidence, it is most unlikely that Ms Lorenz's statement was particularly influential.

[1] Bankier v HAP 2 Pty Ltd (No 3) [2019] QSC 186 at [8]; See also Castro v Hillery [2002] QCA 359; [2003] 1 Qd R 651 at [79].

[2] Bankier v HAP 2 Pty Ltd (No 3) [2019] QSC 186 at [21].

[3] See Moss v Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) [2006] WASC 311 and Hannell v Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) [2006] WASC 310.