Whether asbestos manufacturers owe DIY home renovators a duty of care

Case Law Update

Werfel -v- Amaca Pty Ltd & The State Of South Australia

On 6 August 2019, Her Honour Deputy President Judge Farrell handed down a noteworthy decision in the South Australian Employment Tribunal (‘SAET’), awarding Mr Mathew Werfel $3,077,187.00, following a diagnosis of mesothelioma in 2017.

Mr Werfel (42 years old, with three young daughters) commenced proceedings in the SAET naming Amaca Pty Ltd (‘Amaca’) as a Defendant. The Plaintiff alleged that his mesothelioma was caused by the inhalation of asbestos fibres whilst working as a fencing contractor between 1994 and 1997 and whilst undertaking maintenance work and DIY home improvements (sanding and drilling) at the two homes he owned in the Northern Suburbs of Adelaide between 2000 and 2005.

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

Whether the Defendant owed persons in the class of DIY home renovators a duty of care, whether the Defendant could have minimised the chance of exposure and breach of duty of care were the more significant issues.

Judge Farrell found that Amaca, as a manufacturer of asbestos cement building products, owed a duty of care to consumers and the end users of its goods, and that this included Mr Werfel, as an employee and also as a home handyman who did maintenance and renovation work on his various properties [at 143]. This duty of care further extended to warning the public of the associated asbestos health risks, and whereby it was also found that Amaca had the resources and knowledge to warn but failed to do so. Judge Farrell also stated that the direct consequence of their failure to warn was that they had breached their duty of care by not taking the reasonably necessary steps to minimise the risk of exposure.

Judge Farrell awarded damages of $3,077,187.00 as follows:-

  • Pain and Suffering and loss of enjoyment of life – $400,000.00
  • Interest – $8,000.00
  • Future medical treatment – $150,895.65
  • Loss of expectation of life – $40,000.00
  • Past economic loss and interest – $23,817.00
  • Future economic loss – $1,300,000.00
  • Past medical expenses – $12,034.00
  • Future medical expenses – $150,895.00
  • Past gratuitous services to Mr Werfel – $98,419.00
  • Future gratuitous services to Mr Werfel – $187,862.00
  • Past gratuitous services by Mr Werfel to family – $20,000.00
  • Future gratuitous services by Mr Werfel to family – $326,160.00
  • Future gratuitous services to Mr Werfel’s children – $260,000.00
  • Exemplary damages – $250,000.00

It is noted that Mr Werfel was 42 years old, had three young daughters, and he had a reduced life expectancy of 45 years.

This case will likely have significant implications for people who were / are exposed to asbestos fibres in their homes and communities and, specifically, those engaging in DIY home renovations in South Australia. Further, and in particular, this case has the potential to influence trends in other jurisdictions, including the NSW Dust Diseases Tribunal.

Prepared by Andrew J Kemp, Principal Solicitor, and Jackson Gilbert, Solicitor, and Amelia Proudlove, Paralegal.

For further information please contact:

Andrew Kemp
Kemp & Co Lawyers

Post: Level 3, 7 Bridge Street, SYDNEY NSW 2000
Phone: 9241 7799
Fax: 9241 1178
Email: info@kempandco.com.au