Moss v Amaca Pty Ltd

Moss v Amaca Pty Ltd - [2006] WASC 311 - WASC 2006 case summary — Zoe

[168]

58 In Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 at [29] McHugh J said that it is beyond doubt that a manufacturer of any product owes a duty to a consumer to take reasonable care to prevent the product causing injury or loss to the consumer. In that case the appellant had distributed in Australia canola seed produced in New Zealand. The seed contained a small amount of weed seeds. At the time of the importation no Australian government had declared any of the weeds to be a prohibited weed. The respondent, which conducted a farming business in Western Australia, bought and planted some of the seed which the reseller had bought from the appellant. Shortly after that transaction the Agriculture Department of Western Australia made declarations which required the eradication of the weed seeds. At trial the appellant conceded that it owed a duty of care but did not elaborate upon the scope of the duty of care. On appeal to the High Court the appellant sought to withdraw its concession. Gummow J at [58] said that it was unnecessary to consider whether the appellant should be permitted to withdraw the concession that, as ultimately formulated by the primary Judge, it owed a duty to the consumers of its canola seed to exercise reasonable care not to expose those consumers to a risk of injury of which the appellants knew or ought to have known. His Honour said that the critical question was whether the primary Judge erred in holding that the appellant breached that duty. Kirby J said at [99] that the concepts of duty, scope and breach represent component parts of a unified notion that must be constantly brought back to the touchstone of reasonableness. His Honour observed that the concession of the existence of a duty of care had been made without much clarity as to the scope of the duty being conceded and that the scope of the duty has significance for the related question of breach. At [159] Hayne and Callinan JJ said that as the respondent's case was presented at trial, the critical question was to identify whether the appellant knew or ought to have known that there was a risk of the sort of injury which it was alleged had been suffered - financial loss occasioned by pursuing a course of action recommended by government authorities to guard against the possible emergence of plants which had been declared to be harmful only after the appellant had distributed the seed and the farmers had acquired it. Their Honours said that only if that sort of loss was reasonably foreseeable by the appellant would the duty asserted by the respondent have been engaged.

[380]

"The threshold question in considering the matter is to determine the scope of the duty of care owed by the respondents as distributors and manufacturers of Carefree Super tampons used by the appellant being one of the class of persons who could be reasonably foreseen to be purchasers and users of that product.

That a duty of care was owed by the respondents to the appellant was not disputed by the respondents. The tampons used by the appellant and manufactured by the second respondent and distributed by it to the first respondent and by it in turn to the public for purchase by that section of them using the same was of a nature, kind and composition as designed and intended. It was not part of the appellant's case that it suffered from any defect or fault brought about in its preparation or distribution as to give rise to consideration of that type of duty of care as was considered, for example, in Donoghue v. Stevenson [1932] A.C. 562 and Grant v. Australian Knitting Mills Ltd [1936] A.C. 85.

However, where the manufacturer and/or distributor of the product ought reasonably to have foreseen that there was a risk of injury, which was not far-fetched, in the sense referred to by Lord Reid in The Wagon Mound (No 2) [1966] UKPC 1; [1967] A.C. 617 at pp. 643-4 and by Mason J., as he then was, in Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 C.L.R. 40 at pp. 46-7, there exists a relationship between the respondents and the appellant as a member of the class of persons likely to purchase and use the products so manufactured and distributed which gave rise to a duty of care by the respondents to the appellant.

The question is 'what is the scope of that duty of care?' Is it to take reasonable care to avoid injury to the appellant from her use or continued use of the product? If such is the duty then in determining whether the respondents were in breach of that duty it is necessary to evaluate the magnitude of that risk and all other relevant circumstances and matters in order to determine whether the respondents' response to the risk was reasonable or whether it was such as to constitute a breach of the duty owed: See Wyong Shire Council v. Shirt, at p. 47. If, however, as was contended for on behalf of the appellant the scope of the duty was to warn the appellant as being a member of the class of persons to whom the duty was owed, of the risk involved in using or continuing to use Carefree Super tampons then, putting aside any question of causation in the event of a breach of that duty, the appellant would be entitled to succeed."

[426]

"Whilst it's not absolutely certain, I can tell you, ... current concepts of what is most likely. The types of asbestos that cause mesothelioma or are most likely to cause it are shaped like a spear, are long and narrow, and when they're inhaled they work their way through the lungs and find themselves on the outside of the lungs where they irritate the sac in which the lung sits known as the pleura ... It is thought that over a period of time the damage caused by that fibre, which is probably made worse by breathing - if you can imagine the lung rubbing up against the pleura every time you take a breath and you've got fibres sticking out, it's always scratching the pleura causing damage and it's those repeated cycles over many years of damage and repair, damage and repair and production of molecules like oxidants that damage the DNA that allow pleura mesothelial cells to accumulate DNA damage. Now, most of the time damage does not cause mesothelioma but it is thought that in everybody that has been exposed to asbestos there is probably some DNA damage. How much DNA damage do you need to get mesothelioma? Well, the answer is every cancer cell probably has tens of thousands of mutations but most of them occur in non-dangerous genes. It's when you get a set, may be two, three, four, five, six genes, that cause cancer in that, let's say 15,000 or 11,000 mutations - call it 11,000. You need 11,000 and you get six maybe that are the dangerous ones. They are the ones that unfortunately trigger the mesothelioma but it takes a long time to accumulate that much DNA damage. When the cancer is finally triggered, it has disordered growth. Cells of course normally grow. That's how we grow from childhood to adulthood and that's how when we have a wound the skin will grow and cover it over. So growth is normal but cancer is when that growth has lost its controls. I guess like a mob out of control. That happens because of a number of reasons but the simplest way to think about it is that the cell growth is driven by an accelerator, which are growth factors and by brakes which stop growth, so that when your skin has healed from a wound the body realises that and the skin stops growing. So there's an accelerator and a brake and cancer is when there's too much accelerator and no brake. The things that are accelerators are ... things called oncogenes and the things that are the brakes are things called tumour suppressor genes and mesothelioma clearly has disorders in both of those two things. So it grows. It takes a while to kick off but once it has kicked off it grows relentlessly unfortunately ..."

At a glance

Court

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Before

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Judgment (586 paragraphs)

Moss v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 311 (22 December 2006)

Parties

Legislation Cited (2)

Cases Cited (50)