Judgment date: 5 August 2009
Smith v Amaca Pty Ltd & Anor  VSC 318
Supreme Court of Victoria1
- For a plaintiff to assert that two or more tortfeasors are jointly liable in damages, the plaintiff must demonstrate more than the mere similarity in business between the defendants and a knowledge of the competitor's products.
- It was held that there was insufficient evidence that the defendants in these proceedings, being manufacturers and suppliers of asbestos cement building products, were engaged in a common enterprise or were taking concerted action to a common end. The defendants could therefore not be held to be jointly liable.
The plaintiff had commenced proceedings in the Supreme Court of Victoria seeking damages in respect to the condition of mesothelioma, alleged to have arisen from his exposure to asbestos cement building products manufactured and/or supplied by Amaca Pty Limited (James Hardie & Co) and Seltsam Pty Limited (Wunderlich Limited). According to Forrest J, the liability of the defendants as outlined in the statement of claim was solely alleged to be several.
Shortly prior to the commencement of the hearing, the plaintiff sought leave to amend the allegations in the statement of claim and allege that the two manufacturers of asbestos products were jointly liable for the plaintiff's exposure to asbestos.
The basis for the plaintiff's assertion was that the defendants' conduct in supplying similar, if not identical, products to a small hardware store, without identification and where differentiation between the products would be difficult, constituted sufficient common conduct to give rise to joint liability.
The defendants opposed the proposed amendments submitting that there must be a "concerted action to a common end" for joint liability to be established. It was argued that knowledge of another manufacturer's business, no matter how detailed, and similar conduct in respect to the manufacture of similar products could not on its own, give rise to joint liability.
Forrest J outlined the principles relating to joint liability of concurrent tortfeasors as set out in The Koursk2 in which Scrutton LJ said:
"Certain classes of persons seem clearly to be 'joint tort feasors' : The agent who commits a tort within the scope of his employment for his principal, and the principal; the servant who commits a tort in the course of his employment, and his master; two persons who agree on common action, in the course of, and to further which, one of them commits a tort. These seem clearly joint tort feasors; there is one tort committed by one of them on behalf of, or in concert with another."3
Furthermore in The Koursk4, Bankes LJ, Scrutton LJ and Sargant LJ accepted the following:
"Persons are said to be joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a common design ... but mere similarity of design on the part of independent actors, causing independent damage, is not enough; there must be a concerted action to a common end."5
Forrest J highlighted the fact that the law in Australia on joint liability still reflects the principles in The Koursk6 and referred to the High Court decision of Thompson v Australian Capital Television Pty Limited7 where Brennan CJ, Dawson J and Toohey J said:
"Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise to constitute joint tortfeasors two or more persons must act in concert in committing the tort." (Emphasis added.)
Forrest J also considered the fact that from time to time both defendants shared information regarding the risks and dangers of asbestos exposure, the means of minimising or avoiding such risks and maintained a duopoly in Victoria in the asbestos cement building materials market. It was held that none of the above facts gave rise to an inference that the two companies were acting pursuant to a common understanding or agreement.
It was found that the common thread in an allegation asserting joint liability is the existence, either express or implied, or an agreement, or perhaps understanding, to attain a common end or purpose. The plaintiff's application to amend the statement of claim to introduce allegations of joint liability was refused.
One of the authorities relied upon by the plaintiff was the decision of Brook v Bool8 which involved a landlord and tenant who set out to look for a gas leak. In the course of the search the tenant lit a match and both landlord and tenant were held jointly liable for the consequent explosion. According to Forrest J, this decision did not help the plaintiff in these proceedings as the landlord and tenant in the Bool matter had a common purpose, an understanding and a common design.
This decision confirms that the High Court authority on what constitutes joint liability in Thompson v Australian Capital Television Pty Limited9 still represents the benchmark and cannot be overcome in circumstances where there are mere similarities in the conduct between two or more tortfeasors – there must be a "concerted action to a common end".
Although the judgment concerned an interlocutory matter it serves as a useful reminder that to succeed in establishing liability on the part of joint tortfeasors a plaintiff must prove the existence of an agreement or understanding to attain a common end or purpose.
1 Forrest J
2  P 140
3  P 140, 155
4  P 140
5  P 140, 151, 156, 159
6  P 140
7  HCA 38
8 (1928) 2 KB 578
9  HCA 38
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.