Abel v Amaca Pty Ltd
[2010] SADC 98
•23 July 2010
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
ABEL v AMACA PTY LTD UNDER NSW EXTERNAL ADMINISTRATORS (FORMERLY JAMES HARDIE & COY PTY LTD)
[2010] SADC 98
Judgment of His Honour Judge Barrett
23 July 2010
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE
The plaintiff was employed by a builder from 1963 to 1979. He was exposed to dust from asbestos cement products made by the defendant's predecessor company. In 2005, he contracted dust diseases caused by inhalation of asbestos dust. Knowledge of the risks of asbestos dust was less during the plaintiff's employment than now. Rebuttable presumptions about knowledge in Dust Diseases Act 2005. Interpretation of s 8.
Held: Risks of dust disease reasonably foreseeable. Defendant breached duty of care.
Dust Diseases Act 2005 s8; Dust Diseases Regulations 2006 r 4; SA Narcotics and Psychotropic Drugs Act 1934-1978 s 5(4); Controlled Substances Act 1984 s 32(3), referred to.
Cross on Evidence 7th Austrlaian edition; R v Walden (1986) 41 SASR 421; R v Zapogna (2003) 85 SASR 56; Seltsam Pty Ltd v McNeill [2006] NSWCA 158; Wyong Shire Council v Shirt (1980) 146 CLR 40; Amaca Pty Ltd v Hannell (2007) 34 WAR 39, (2007) WASC 158; Sydney Water Corporation v Turano and Ano (2009) 239 CLR 51; McCusker v Seltsam Pty Ltd and James Hardie and Coy Pty Ltd (1997) NSWDDT 179; rolls Royce v James Hardie (1999) 18 NSWSCCR 653, considered.
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES
The plaintiff suffered pleural effusion in 2005 and other dust diseases. Damages for pain and suffering and loss of amenity. Interpretation of s 9 Dust Diseases Act 2005. Awarded General Damages, Griffiths and Kerkemeyer Damages. Declined to order s 9(3), Sullivan v Gordon damages.
Dust Diseases Act 2005 s 9(3), referred to.
Ewins v BHP Billiton Ltd and Ano (2005) 91 SASR 303, [2005] SASC 95; Peter Michael Callinan v Comcare [2006] NSWDDT 225; John Downes v Amaca Pty Ltd [2008] NSWDDT 25; Adrianus Gregoris Marie Bakker v Workcover Queensland and Ors [2008] NSWDDT 37; russell v Cockatoo Dockyard Pty Ltd and Ano [2004] NSWDDT 7; Murrell v Steveadore Industry Finance Committee [2005] NSWDDT 2; Raneberg v BHP (1993) SASC (371/92); Mosley v The Broken Hill Pty Ltd Co Ltd [1998] SASC 6522; Reynolds v Comcare [2006] SADC 136, considered.
DAMAGES - GENERAL PRINCIPLES - EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES
The plaintiff sought exemplary damages pursuant to s 9(2) of the Dust Diseases Act 2005. Interpretation of s 9(2). Discussion about whether common law principles apply.
Held: Common law principles do apply. Defendant's conduct not such as to require an award of exemplary damages.
Dust Diseases Act 2005 s 9(2), referred to.
Trevorrow v South Australia (No5) (2007) 98 SASR 136; Gray v Motor Accident Commission (1998) 196 CLR 1, [1998] HCA 70; Beckworth v The Queen (1976) 135 CLR 569; Pickersgill v Freightbases Pty ltd [1983] 3 NSWLR 117, considered.
ABEL v AMACA PTY LTD UNDER NSW EXTERNAL ADMINISTRATORS (FORMERLY JAMES HARDIE & COY PTY LTD)
[2010] SADC 98Introduction
The plaintiff is a 77 year old man (born 14 February 1933) who worked for a building company for about 17 years in the 1960s and 70s. The company made prefabricated housing at Elizabeth Vale using building products manufactured by Hardies, the predecessor company of the defendant. The plaintiff was exposed to some of the building products which contained asbestos. The plaintiff retired from that job in 1979 when he was 46. He was not exposed to asbestos in later jobs. He retired altogether in 1997 when he was 64. In 2005, when he was 72, he suffered what is agreed by the parties to be an asbestos related benign pleural effusion.
The plaintiff says that subsequently, and consequently, he has suffered a lung function disability and is at an increased risk of lung cancer. He has never smoked. The plaintiff seeks provisional damages pursuant to s 9(1) of the Dust Diseases Act 2005 (“the Act”) under a number of heads and he seeks exemplary damages. He says the defendant well knew the health risks to which its products exposed him during his work with the builder between 1963 and 1979. The defendant denies it was negligent. It says that during the period the plaintiff was exposed to asbestos it did not know that exposure by people in the plaintiff’s position was harmful. That knowledge post-dated his exposure. The defendant denies any causal link between the plaintiff’s exposure to asbestos and most of the disability the plaintiff presently experiences.
The Issues at trial
The plaintiff sues the defendant in negligence. He alleges that as a manufacturer of asbestos building products, the defendant owed him a duty of care in his work place. The defendant breached that duty of care by negligently failing to withdraw its products from the market when it learnt of the risks, or it negligently failed to warn him of the risks. As a result of that negligence he has suffered loss and injury. He claims he is entitled to damages for the loss and injury he has suffered and to exemplary damages. The defendant should be punished because it well knew the risks it caused the plaintiff. These allegations are denied by the plaintiff.
The issues are therefore:
1. Liability
(a) What was the plaintiff’s exposure to asbestos products manufactured by the defendant?
(b) Did the defendant owe a duty of care to people exposed in the way the plaintiff was exposed? Was the risk to such people foreseeable?
(c) What was the extent of the duty of care?
(d) Did the defendant breach its duty of care, and if so, in what way?
(e) If the defendant was negligent, what loss or injury did the negligence cause to the plaintiff?
2.Damages
What damages should be awarded for each loss or injury caused by the defendant’s negligence?
3.Exemplary Damages
Was the defendant’s knowledge of the risks to which it exposed the plaintiff such that it should be punished by an award of exemplary damages? If so, what sum should be awarded?
Liability – Plaintiff’s exposure to asbestos - Issue 1(a)
Between February 1963 and October 1979, the plaintiff was employed by a building company which was first called World Wide Camps Pty Ltd, then ATCO. ATCO is well known as the producer of portable housing commonly used by mining companies and housing authorities in remote areas. I will refer to the employer as ATCO. While the plaintiff was working for ATCO they moved their worksite from one location to another, both within Elizabeth Vale. The second site was two streets away from the Hardies’ factory.
It is not disputed that the plaintiff had no exposure to asbestos before working at ATCO. He was born and raised in Aberdeenshire in Scotland. When he left school at 14 he helped his father as a gardener. Then he worked on a truck delivering groceries. In the early 1950s he started, but did not complete, a mechanics apprenticeship. He then operated a van selling food. He eventually became self-employed in that business. He married in 1956 when he was 23. His two daughters were born in Scotland. The family migrated with other family members to South Australia in 1962. The plaintiff worked as a sheet metal worker for Chryslers between June 1962 and February 1963. In February 1963 he began the same sort of work at ATCO. He was a sheet metal worker for only a short time at ATCO before moving into their plumbing section. He worked in these two areas of the ATCO site for about 4 years. In 1967 he was promoted to factory supervisor.
The plaintiff’s employment at ATCO had several phases. It will be necessary to try to identify the contact the plaintiff had with asbestos in each phase of his work. The defendant submits that in each of the phases the plaintiff had a reducing contact with asbestos.
In the first phase the plaintiff was a worker in the sheet metal and plumbing sections. In that work he could be described as an end-user. He had hands-on contact with products containing asbestos. The defendant did not concede at the outset of the trial that the plaintiff actually worked with products made by the defendant. There were other manufacturers of building products containing asbestos which might have sold their products to ATCO. However, during the trial the defendant conceded that the plaintiff had established on balance that he did work with the defendant’s products.
In 1967 the plaintiff became a factory supervisor. This is the second phase. He described that job as a collar and tie job but he said that in that supervisory capacity he still came into close contact with asbestos. The defendant submits that, working in that capacity, the plaintiff’s contact with asbestos was as a bystander.
From 1971 to 1979 the plaintiff was promoted to manufacturing manager which was an executive sort of job. The defendant says the plaintiff might be described as a bystander in this capacity as well but he had less contact with asbestos than in the earlier phase. This is the third and final phase of his work with ATCO.
I turn to examine the plaintiff’s contact with asbestos during the first phase of his work. This phase was between 1963 and 1967.
In the sheet metal section the plaintiff was engaged in fitting metal wall and roof sheets, windows and doors.[1] He did that for a few months.[2] That work did not involve actually working with asbestos products.[3] He was nevertheless working close to people who were using them.
[1] T24.
[2] T110.
[3] T112.
It is not disputed that he did handle asbestos products in the 4 years between 1963 and 1967. During that time he was installing plumbing fittings and fixtures. He had to line walls around heaters and put thick sheets on the floors. To do this he cut asbestos sheets, sometimes with a circular saw and sometimes manually with cutters. The “asbestos sheets” were asbestos cement products. When I refer to asbestos I am referring to asbestos cement products from which asbestos dust may be liberated. The plaintiff said he would smash small sheets with a hammer then mix it with water to make a paste to seal water, gas and flue pipes. On one occasion he used asbestos rope for sealing but he found the paste worked more effectively. He would work almost every day with asbestos. A lot of dust was caused by cutting asbestos. He cut asbestos himself and worked close to carpenters who were also doing it. He said it was impossible to avoid the asbestos dust.[4] Subcontractors would come in to do some of the work and, because of the rates at which they were paid, they worked very fast using circular saws. The asbestos dust thus caused was “pretty horrendous”.[5] Subcontractors also came in to sand or grind floor sheets of compressed asbestos to level joints. The dust from that was “just awful”.[6]
[4] T127.
[5] T38.
[6] T39.
The plaintiff said he could not remember the brand names of all the asbestos products he worked with. He believed that they were made by Hardies. He did not believe he worked with any asbestos that was not made by Hardies.[7] He referred to Hardies’ brand names that he could remember. They included Hardiflex, Versilux, Sierra, Stucco Hardieplank and Villaboard. He said he noticed Hardies’ trucks delivering the asbestos to the ATCO worksite although he better remembered that being so at the Barfield Crescent site, the later of the two sites. ATCO moved from a site at Coglin Street to Barfield Crescent in 1965.[8] Most of the work was done inside the factory but some was done outdoors.[9] There were times between 1963 and 1968 when the plaintiff worked 6, 6 and a half and 7 days a week. The shifts were sometimes 9 hours or more. To get particular projects completed they were earning “triple time” working shifts longer than 9 hours[10] The evidence so far applies to the first phase of the plaintiff’s work with ATCO between 1963 and 1967.
[7] T30-31.
[8] T118.
[9] T28.
[10] T134.
The plaintiff’s direct exposure to asbestos is a little less clear in the phases after the first. From 1967 to 1968 he was factory supervisor (2nd/supervisory phase). From 1969 to 1971 he was production manager. From 1971 to 1979 he was manufacturing manager[11] (3rd/managerial phase).
[11] T125-128.
He said he had exposure to asbestos dust even after he became a manager.[12] On a daily basis the plaintiff was in the building yard supervising work. He says he worked in close proximity with sheet metal workers, plumbers, carpenters, gyprock fixers, electricians and painters. Sometimes he would be right next to such workers.[13]
[12] T37.
[13] T125.
From 1969, when he became the production manager, he was dressed in a suit. He “wasn’t hands-on anymore”.[14] I would infer from his description of his daily dress before 1969 that between 1967 and 1969 he was not “hands-on” either. He said he was dressed in “dress pants, collar and tie”.[15]
[14] T126.
[15] T126.
The defendant describes the plaintiff as being a “bystander” to asbestos work. While that label may have some meaning, I prefer to more fully describe the exposure. No evidence contradicted the plaintiff’s evidence of his exposure. He received some support from former ATCO workers. Three of them were called.
Mr Newman was employed by ATCO for 8 and a half years after 1960. He was an estimator and stocktaker. He was for a short time the purchasing officer. He worked at both ATCO sites. He knew the plaintiff. He used to see him in his supervisory capacity. He described seeing him “on the floor”. ATCO used Hardies’ products. On one occasion a representative of Hardies showed Mr Newman the asbestos sheets being made at their factory. Mr Newman ordered some Hardies’ products for ATCO himself when he was purchasing officer. He used to see dust coming from cutting work being done on asbestos.
Mr Mitchell worked at ATCO between 1962 and 1976. He started as a carpenter and then worked as a plumber. He himself used circular saws to cut asbestos. He saw dust being caused from the cutting. He remembered seeing the plaintiff in the building yard.
Mr McKinnon worked at ATCO for 5 or 6 years. During that time he was the purchasing officer and he dealt extensively with Hardies. He purchased many Hardies’ products for ATCO. He had started as a foreman in October 1974. He became purchasing officer in 1975 and he finished working for ATCO in 1980.
Findings of Fact on the Plaintiff’s Exposure
I find that during the whole of his employment with ATCO between February 1963 and October 1979 the plaintiff was exposed to varying degrees to asbestos products and asbestos dust. For the whole of that time he worked at a worksite where asbestos products made by Hardies were being used in prefabricated housing construction. Asbestos dust was constantly present during work hours at the site. At least when he was a plumber, and possibly when he was a supervisor, he would work shifts of 9 hours duration and would on occasions work 6, 6 and a half and 7 day weeks. The dust would have been at its most concentrated where workers were using mechanical saws cutting asbestos inside the factory but it would also be present when cutting was done in the open air. For 4 years when he was in the plumbing section the plaintiff worked in areas of the greatest concentration of asbestos. He was handling, cutting and hammering asbestos.
After 1967 when he rose to more senior positions the plaintiff had no, or little manual contact with asbestos products, but he continued to have regular exposure to asbestos dust caused by workers he was supervising. He was frequently very close to the sources of asbestos dust. The supervisory work may have exposed him less frequently to asbestos and possibly to less concentrated asbestos as his seniority increased in 1969 and again in 1971. From 1969 he spent proportionately more of his time in an office. During his employment the plaintiff never wore, nor was he encouraged to wear, any clothing or apparatus which might lessen his exposure to asbestos. He and fellow workers at ATCO were unaware of any risks from exposure to asbestos. If, during the last years of his employment at ATCO, there were health warnings on ATCO products he was never aware of them.
Duty of Care – Issue 1(b)
The extent of the plaintiff’s injury will have to be discussed at a later stage but for present purposes it is sufficient to note that the defendant accepts that the plaintiff has proved that he suffered a pleural effusion in 2005 which was asbestos related.[16] I find as a fact that the plaintiff’s pleural effusion is an injury caused by his exposure to asbestos products made by the defendant. Other pleural conditions are also asbestos related but they do not cause the plaintiff any difficulties. I will refer to them later in the discussion of the medical evidence. That exposure occurred between February 1963 and October 1979. I make that finding on the evidence, assuming for present purposes that the plaintiff bears the onus of proving the causative connection. I find that the plaintiff had no exposure to asbestos outside his employment at ATCO.
[16] Outline [36].
Section 8(1) of the Dust Diseases Act 2005 (the “Act”) provides a rebuttable presumption bearing on causation. It reads:
8—Evidentiary presumptions and special rules of evidence and procedure
(1) If it is established in a dust disease action that a person (the injured person)—
(a)suffers or suffered from a dust disease; and
(b)was exposed to asbestos dust in circumstances in which the exposure might have caused or contributed to the disease,
it will be presumed, in the absence of proof to the contrary, that the exposure to asbestos dust caused or contributed to the injured person's dust disease.
The defendant argues that the presumption does not operate to cast an onus of proof on the defendant but, in the light of my finding, and in the light of the defendant’s concession, I will not pause to determine that question. The necessity to do so will arise in another context shortly.
The defendant submits that the plaintiff bears an onus of establishing what part of the plaintiff’s exposure caused the disease.[17] I do not accept that submission. No evidence would be able to pinpoint the causative exposure. I have already found that the plaintiff was exposed to asbestos dust throughout his employment. He inhaled it when he manually worked with asbestos. He inhaled it when he was near workers who were working with it. To varying degrees he inhaled it throughout his almost 17 years of employment with ATCO. I think it likely that he inhaled less asbestos as a supervisor than when he worked with the material himself, and less again in the management phase.
[17] Outline [33].
The defendant is only liable for the plaintiff’s injury if it was negligent. The first step in proving negligence is proving that the defendant owed the plaintiff a duty of care.
It is convenient first to deal with the defendant’s contention that there is no applicable legislative presumption relating to its knowledge of the health risks posed by its products.
The rebuttable presumption of foreseeability in s 8(2)
On its face, s 8(2) of the Act provides a rebuttal presumption that the defendant knew that the plaintiff’s exposure to asbestos dust could result in a dust disease. It reads:
8—Evidentiary presumptions and special rules of evidence and procedure
(2) A person who, at a particular time, carried on a prescribed industrial or commercial process that could have resulted in the exposure of another to asbestos dust will be presumed, in the absence of proof to the contrary, to have known at the relevant time that exposure to asbestos dust could result in a dust disease.
The defendant does not dispute that it carried on a prescribed industrial or commercial process that could have resulted in the exposure of another to asbestos dust. What it does dispute is that there is an absence of proof to the contrary about its knowledge that exposure could result in a dust disease. Mr Watson SC argues that the words “in the absence of proof to the contrary” do not mean that a burden of proof rests upon the defendant to rebut the presumption of knowledge. Rather, he says, the words mean that it bears only an evidentiary burden. If the defendant tenders any evidence to the contrary of the presumption, the presumption does not operate. Put another way the words do not impose a burden of proof, they impose an obligation to adduce some evidence to contradict the presumption. In the alternative, he submits that if the defendant does bear an onus, it has discharged it.
The words of s 8(2) of the Act give rise to considerable difficulties of interpretation.
I deal first with the question of whether the words impose an onus of proof upon the defendant. I will deal later with exactly what it is that must be proved.
Before the presumption operates the plaintiff must prove that, at a particular time, the defendant “carried on a prescribed industrial or commercial process”.
The defendant accepts that it did so. Regulation 4 of the Dust Diseases Regulations 2006 (the “Regulations”), combined with clause 2 in schedule 1 of the Regulations, says that the manufacture of products containing asbestos is a prescribed industrial or commercial process. The defendant plainly carried on that process between 1963 and 1979 when the plaintiff was employed by ATCO.
The plaintiff must then prove that the process “could have resulted in the exposure of another to asbestos dust”.
I find that the evidence demonstrates that the manufacture of products containing asbestos by Hardies could have resulted in the exposure of other people (“another”) to asbestos dust. Workers in the Hardies’ factory where the products were made could have been exposed, but so too could people beyond the factory gates. The result of the processes at Hardies was products containing asbestos. Those products were used by consumers in such a way that asbestos dust was released. Cutting asbestos products is an obvious relevant use.
These proved preconditions lead to the operation of the presumption of certain knowledge. I will deal with the effect of the presumption before dealing with the knowledge.
Mr Watson submitted that the words “presumed, in the absence of proof to the contrary” mean that there arises a rebuttable presumption. That presumption is rebutted simply by the adducing of evidence tending to disprove that which is presumed. The presumption ceases to operate as soon as rebutting evidence is called. Insofar as the defendant bears an onus it is an evidentiary onus, discharged upon the calling of rebutting evidence.
In support of his argument Mr Watson referred to Cross on Evidence, 7th Australian edition, at 278. The authors there suggest that once the burden of proof is placed on a party, and that party calls evidence, the presumption has no “inherent super added weight”. The authors cite colourful authority:
… presumptions may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts”. Mackowik v Kansas City St FCBR Co (2006) 94 SW 256 at 262 per Lamm J (MoSC). Hence the presumption can no more be measured against evidence than “than two and a half pounds of sugar can be weighed against half past two in the afternoon”. WL Prosser and WP Keeton, Handbook of the Law of Torts, 5th ed 1984, [38]. As Morgan has said: “To consider a compelled assumption as evidence or to weigh it with evidence seems to involve a mental operation impossible at practical comprehension, to say nothing of understandable exposition or explanation to a jury. “some observations concerning presumptions (1931) 44 Harv LR 906 at 908.
Mr Semmler QC submitted that the presumption operates to shift the onus of proof of relevant knowledge on to the defendant. The defendant must prove on the balance of probabilities that it did not know something. The presumption may be rebuttable, but only upon proof of the contrary.
I accept Mr Semmler’s submission. Although not without their difficulties, legislative presumptions of fact are familiar in the Criminal Law. I take as examples two presumptions found in drug legislation. Section 5(4) of the now repealed and superseded SA Narcotics and Psychotropic Drugs Act 1934-1978 provided:
A person who knowingly has in his possession more than a prescribed quantity of any drug to which this Act applies shall be deemed to have that drug in his possession for the purpose of trading in the drug unless the contrary is proved.
In R v Walden (1986)[18] the Court of Criminal Appeal held that there was a reversal of onus.[19] The defendant bore the burden of proving on the balance of probabilities that he did not possess more than the prescribed quantity of drug for the purpose of trading.
[18] 41 SASR 421.
[19] Zelling A CJ at 428, Millhouse J at 433 and Prior J agreeing at 433
Section 32(3) of the more recent Controlled Substances Act 1984 (as it then read) provides:
For the purposes of this section, a person who knowingly has in his or her possession more than a prescribed amount of a drug of dependence, or a prohibited substance, being an amount that is prescribed for the purposes of this subsection, will, in the absence of proof to the contrary, be presumed to have that drug in his or her possession for the purpose of sale or supply of that drug or substance to another person.
In R v Zapogna[20] Duggan J (with whom Doyle CJ and Gray J agreed), construed this legislation in the same way as the Court in Walden with one qualification. His Honour said:
[42] In the passages complained of, the trial judge referred to a "change in the onus of proof" with respect to that element of the charge which requires possession to be for the purpose of sale. According to the argument, this may have conveyed to the jury that the prosecution was not required to establish this element of the offence.
[43] I do not think there was any danger of the jury being misled by the terminology used by the trial judge. He explained that the prosecution must prove that the appellant had the drug in his possession for the purpose of sale. He went on to refer to the presumption which would arise if the prosecution established beyond reasonable doubt that the appellant was in possession of more than the prescribed amount. He explained that the presumption could be rebutted by the appellant if it were established on the balance of probabilities that the possession was not for the purpose of sale.
[44] That having been said, it would be better, in my view, if the effect of the section was not explained in terms of a change of onus, although I appreciate that this is sometimes said in the course of jury charges. There is a sense in which that statement is true, but there is a risk of confusing the operation of the onus in relation to the presumption with the overall onus in relation to proof of this particular element of the offence. The onus of establishing the element of purpose for sale remains throughout on the prosecution, albeit that proof is aided by the presumption.
[20] (2003) 85 SASR 56.
The qualification in [44] about the inadvisability of referring to the “change of onus” is to avoid confusion for jurors. Notwithstanding that caution his Honour said there was a sense in which the expression was true.
I conclude that, in the circumstances of this case, the words “in the absence of proof to the contrary” mean that the defendant must prove that it did not possess certain knowledge. It must do so on the balance of probabilities. Certainly that is how members of the Parliament which passed the legislation regarded the provisions. Mr Semmler referred to several speeches. I will footnote only that of the Attorney General, the Hon. MJ Atkinson.[21]
[21] House of Assembly, 30 November 2005, Hansard p 4291.
To draw an analogy with the remarks of Duggan J above, the plaintiff must prove that the defendant was negligent, but proof of foreseeability is aided by the presumption.
The next step in interpreting s 8(2) is to determine what knowledge the defendant is presumed to possess in the absence of proof to the contrary. To put it another way, what must the defendant prove it did not know.
Mr Semmler submitted that the words “to have known at the relevant time that exposure to asbestos dust could result in a dust disease” should be read as meaning that the defendant should be taken to have known at any time between February 1963 and October 1979 that exposure, such as the plaintiff’s, to asbestos dust, from whatever source, could result in him suffering any dust disease.
I pressed Mr Semmler to tell me what it was he said the defendant should prove once the presumption was enlivened. He said this[22]:
To displace the foreseeability presumption in s 8(2) of the Dust Diseases Act the defendant must prove on the balance of probabilities, that it did not know at the relevant time that exposure to asbestos dust could possibly result in a dust disease. That is what it has to prove.
[22] T796.
While that formulation closely follows the wording of s 8(2) it seems to me that it fails to identify, or sufficiently focus on, the person who is exposed to asbestos and the circumstances of the exposure. Both are referred to in s 8(1) which reads as follows:
8—Evidentiary presumptions and special rules of evidence and procedure
(1) If it is established in a dust disease action that a person (the injured person)—
(a)suffers or suffered from a dust disease; and
(b)was exposed to asbestos dust in circumstances in which the exposure might have caused or contributed to the disease,
It will be presumed, in the absence of proof to the contrary, that the exposure to asbestos dust caused or contributed to the injured person's dust disease. (emphasis added)
Posing the question as Mr Semmler did suggests the defendant’s knowledge of the risks of extensive exposure by, say, workers manufacturing asbestos products, would be sufficient to make it liable for the limited exposure of the occasional handyman. I do not think the defendant’s liability is so broad.
The Act does not change the principles of liability. The requirement to prove negligence remains. The act merely facilitates proof of liability. Liability for an individual loss begins with proof of foreseeability of risk. That principle, and its application in the area of dust diseases, has been considered in recent times by two intermediate Courts of Appeal and by the High Court. In none of the cases was there legislation reversing the onus of proof in the way that s 8(2) of the South Australian Act does. In none of them were the facts similar to those in the present case. Only the two intermediate court decisions were dust diseases cases. In each of those, the plaintiff was a handyman who had exposure to asbestos products on only a few clearly identified occasions. Nevertheless the principles discussed in these cases are applicable.
The first case was in 2006 in New South Wales. In Seltsam Pty Ltd v McNeill[23] the respondent/plaintiff was a priest who had been exposed to asbestos products on two occasions when he carried out building work for relatives. One occasion was around 1960 and the other was in 1961. Bryson JA, with whom Handley and Tobias JJA agreed, said:
[28] Foreseeable risk of injury to workers in factory situations in which manufacturing processes are applied to asbestos, and in other industrial situations, has long been clearly known, as is shown by judicial decisions. There is no ready transition from this body of knowledge to a conclusion about the reasonable foreseeability of risk of harm to persons in a class of which the respondent is a member.
[23] [2006] NSWCA 158.
His Honour referred to the test for duty of care in Wyong Shire Council v Shirt. He said:
[30] The test by which the existence of a duty of care is to be established in this case, as it generally is except in classes of cases where judicial authority has established its existence, is found in the judgment of Mason J. in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47–48. The introductory words of the passage suggest that it is directed to decision on breach of duty, but its actual application has been wider. As the existence of a duty of care was conceded in Shirt's case, Mason J’s judgment is an unlikely source for the authoritative statement on the circumstances in which a duty of care exists which it has come to be treated as. Mason J. said:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
Mr Semmler placed emphasis on that part of Mason J’s judgment which said that a risk of injury which is extremely unlikely to occur may nevertheless constitute a foreseeable risk. However, as Bryson JA went on to say, that passage should not be seen as detracting from the requirement of reasonable foreseeability. In that regard His Honour said at [32]:
An aspect of the judgment of Mason J. which I find striking is the absence of reference to reasonable foreseeability in the last four sentences of the passage which I have cited; those four sentences are frequently referred to without the preceding sentences. It would be a misreading to suppose that reasonableness is not an aspect of foreseeability. Mason J. said nothing to express an opinion that it is not, and his judgment opened at 44 with the following sentences, in which the reasonable man is part of the concept of foreseeability:
“According to Lord Atkin's statement of principle in Donoghue v Stevenson [1932] AC 562 at 580, as it has been refined in later decisions, prima facie a duty of care arises on the part of a defendant to a plaintiff when there exists between them a sufficient relationship of proximity, such that a reasonable man in the defendant's position would foresee that carelessness on his part may be likely to cause damage to the plaintiff (Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 1004 at 1027, 1034 and 1054 and 1060; Anns v Merton London Borough Council [1977] 2 All ER 492; [1978] AC 728, at 751–2). It has not been suggested that there were present in the instant case any considerations which negated the duty. Indeed, the appellant council conceded in this court that it was under a duty of care to person’s water ski-ing in that part of the lake in which the plaintiff sustained injury.”
The second case was a year later in Western Australia. In Amaca Pty Ltd v Hannell[24] the plaintiff/respondent had what Martin CJ described as “limited non occupational exposure” to asbestos on three occasions in 1983, 1985 and 1990. The three members of the court agreed that the appeal should be allowed, but they arrived at their conclusions for different reasons. The Chief Justice disagreed with the trial judge’s finding about foreseeability while the plurality judges agreed (see below). However Martin CJ and the plurality judges Steytler P and McClure JA speak in similar terms about the questions foreseeability. Martin CJ said:
[24] [2007] 34 WAR 39, [2007] WASC 158.
[236] The issues which arise in the area of foreseeability of harm are related to the medical issues which I have addressed above in relation to causation. Central to both issues, is the question of the risk of harm created by exposure to relatively small quantities of respirable asbestos fibre released as a result of carrying out work on asbestos cement products very occasionally in a non-occupational or domestic environment. The significant distinction between the issues is, of course, that in the context of causation, the question is to be determined by reference to the state of knowledge at the time of trial; whereas in the context of foreseeability, the question is to be determined by reference to the state of knowledge at the time of the alleged breach or breaches of duty: in this case, during the 1970s and the 1980s. As the review of the evidence led on the subject of causation reveals, factors relevant to the magnitude of the risk of harm consequent upon exposure in the course of work of the kind carried out by Mr Hannell, which was foreseeable over the relevant period include:
(a) the relatively low proportion of asbestos contained within asbestos cement products (8 to 15 per cent);
(b) the fact that, in asbestos cement products, the asbestos fibres are bound in with the cement, which reduces the extent to which they are liberated in respirable form when the product is cut, drilled, sanded or otherwise worked upon;
(c) the fact that the asbestos component of the asbestos cement products manufactured during the relevant period, and to which Mr Hannell was exposed, did not include any crocidolite, it included a small amount of amosite (about 1 per cent of the total product) and otherwise comprised chrysotile, which is the least harmful of the types of asbestos; and
(d) the fact that exposure to respirable asbestos fibre in a non-occupational or domestic environment will be occasional and sporadic, with the consequence that cumulative exposure to respirable fibre will be substantially less than that experienced by workers who are regularly exposed occupationally.
[237] The magnitude of the reasonably foreseeable risk of harm to those who undertook work of the kind undertaken by Mr Hannell over the period Amaca is said to have breached its duty is critical to the resolution of the question of whether Amaca owed a duty to take steps to warn those such as Mr Hannell who might be exposed to that risk, and if so, as to the extent of that duty - see Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 - 48; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [107, 113, 202 - 203].
[238] The evidence clearly established that by the commencement of the relevant period in the late 1970s, it was well known that inhalation of substantial amounts of asbestos fibre posed a serious threat to health. The disease most frequently associated with exposure to respirable asbestos fibre was asbestosis: a condition only acquired after exposure to substantial amounts of asbestos over lengthy periods of time. Lung cancer and mesothelioma were also known to be associated with exposure to smaller amounts of asbestos. The critical issue on the topic of foreseeability was the extent of the risk known or thought to be associated with non-occupational activities involving asbestos cement products. That question is critical because the magnitude of the risk thought to be associated with activities of the kind undertaken by Mr Hannell will strongly influence determination of the question of whether a reasonable person in the position of Amaca would or should have embarked upon an extensive advertising campaign of the kind necessary to alert people like Mr Hannell to the risks of doing any work on asbestos cement products which would release respirable fibres. (Emphasis added).
Steytler P and McClure JA referred to the passage by Mason J from Wyong Shire Council v Shirt[25]:
[300] A risk is foreseeable if it is real, not far fetched or fanciful; it can be a real risk even if it is extremely unlikely to occur.
[25] (1980) 146 CLR 40.
But as indicated above that passage is taken slightly out of the context of Mason J’s judgment and should not be taken as meaning that reasonable foreseeability is not the test. Their Honours determined that reasonable foreseeability must be determined at the time of the alleged breach. The conclusions reached by the Chief Justice and the plurality judges are respectively as follows:
Martin CJ
[293] When regard is had to the reports of the expert committees and the standards imposed by regulatory authorities over the period relevant to Mr Hannell's case, the finding of the trial Judge that it was reasonably foreseeable to a person in Amaca's position that an occasional and casual user of asbestos cement building products would suffer mesothelioma, or other lung disease as a result of undertaking casual work on those products, cannot be sustained. Considering those reports and standards, it should be concluded that the balance of scientific opinion and the opinion of those responsible for the imposition of safety standards throughout the relevant period, was that the levels of exposure likely to be experienced by those undertaking casual work on asbestos cement products; being, mainly chrysotile asbestos, would not pose a significant or unacceptable risk to health.
…
Steytler and McClure JJA
[301] Reasonable foreseeability must be determined at the time of the alleged breach. The asbestos cement products were installed at the time of construction of the respondent's house in the late 1970s. It appears to have been common cause that a product label should have been attached to the products before they were sold by the appellant. We will proceed on the basis that the appellant sold the product in 1979. The respondent's case was that advertising should have commenced prior to the first of three incidents when the respondent was exposed to asbestos fibres. Those incidents are as follows…
…
[347] In circumstances where the appellant was the manufacturer of the product, the risk of members of the relevant class contracting a life threatening disease was real, not far-fetched or fanciful, even though the risk of it occurring was extremely low. Although the primary Judge erred in failing to give reasoned consideration to the determination of foreseeability issues, he came to the correct result in which event we would dismiss the appellant's grounds of appeal challenging the finding of foreseeability.
The High Court has recently considered the principles bearing on duty of care. The case of Sydney Water Corporation v Turano and Ano[26] concerned the liability of the appellant water authority for the death of a motorist. In 1981 the authority laid a water main in a trench parallel to a public road. The disturbance of the soil affected the drainage flow and caused intermittent water logging which allowed the introduction of a pathogen which affected the root system of a tree which collapsed on to a car during a wind storm in 2001. The occupant was killed. The widow of the deceased sued the water authority and the Municipal Council. The water authority did not have control of the land on which the tree grew in the period between the laying of the main in 1981 and the occurrence of the accident in 2001. The High Court referred to reasonable foreseeability in the following terms:
[45] Reasonable foreseeability of the class of injury is an essential condition of the existence of a legal obligation to take care for the benefit of another. The concept is relevant at each of the three, related, stages of the analysis of liability in negligence: the existence and scope of a duty of care, breach of the duty, and remoteness of damage. At the first stage, the inquiry has been said to involve the assessment of foreseeability conducted at "a higher level of abstraction" than at the subsequent stages. However, to speak of a higher level of abstraction in dealing with that first stage does not support a formulation of duty in terms devoid of meaningful content. It remains, as Gleeson CJ observed in Tame v New South Wales, that the concept is to be understood and applied with due regard to the consideration that, in the context of the issue as to duty of care, it is bound up with the question of whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated.
[46] It was not necessary that the precise sequence of events leading to Mrs Turano's injury be foreseen. However, it was necessary to show that in 1981 it was foreseeable by Sydney Water that laying a water main in a bed of sand in this location involved a risk of injury to road users.
[26] (2009) 239 CLR 51.
In addition to the authorities referred to above, there is some further assistance in interpreting the section to be found in the Regulations applicable to s 8(2) of the Act. Regulation 4 provides:
4—Prescribed industrial and commercial processes—section 8(2)
(1) For the purposes of section 8(2) of the Act, an industrial or commercial process specified in column 2 of the table in Schedule 1 clause 2 is prescribed.
(2) The prescription of an industrial or commercial process under subregulation (1) only applies to a process carried on from the date specified in relation to that process in column 3 of the table in Schedule 1 clause 2.
I reproduce the Schedule 1 referred to in Regulation 4:
Schedule 1—Prescribed industrial and commercial processes (regulation 4)
1—Interpretation
In this Schedule—
prescribed business means a business (whether incorporated or otherwise) that, at the time the relevant industrial or commercial process occurred, employed more than 20 persons.
2—Prescribed industrial and commercial processes
Industrial or commercial process
Relevant date
1
Mining or milling of asbestos, or associated packing or transportation of asbestos
1 January 1940
2
Manufacture of products containing asbestos
1 January 1940
3
Packing or transportation of products containing asbestos by the manufacturer of the products
1 January 1940
4
Sale or supply of products containing asbestos by the manufacturer of the products
1 January 1940
5
Use of products containing asbestos by the manufacturer of the products
1 January 1940
6
Design of any object or thing containing asbestos or products containing asbestos—
(a) in the case of a prescribed business
1 January 1960
(b) in any other case
1 July 1971
7
Sale (whether wholesale or retail) or other supply of products containing asbestos by a person other than the manufacturer of the product—
(a) in the case of a prescribed business
1 January 1960
(b) in any other case
1 July 1971
8
Installation of products containing asbestos (whether in buildings, plant and equipment, vehicles or vessels or otherwise)—
(a) in the case of a prescribed business
1 January 1960
(b) in any other case
1 July 1971
9
Use of products containing asbestos by a person other than the manufacturer of the product—
(a) in the case of a prescribed business
1 January 1960
(b) in any other case
1 July 1971
10
Any industrial or commercial process involving asbestos or products containing asbestos (not being a process referred to in items 1 to 9 above, and not including where the only involvement of asbestos or products containing asbestos in the process is the presence of asbestos or the product in a structure comprising or forming part of the premises in which the process occurred)
1 January 1976
What the Schedule demonstrates is that the presumed knowledge relates to a specific industrial or commercial purpose (column 2) and also a specific date (column 3). The only plausible explanation for there being different dates for different processes is that the legislature has determined that the evidence of scientific knowledge available to it demonstrates that, at nominated dates, it was reasonable to attribute or presume knowledge of risks of exposure to asbestos by nominated users or manufacturers of asbestos.
The conclusion I have drawn from the cases and the Regulations is that the test of foreseeability is not as wide as Mr Semmler has submitted. His test should be refined as follows:
The defendant must prove on the balance of probabilities that it did not know during the time of the plaintiff’s exposure to asbestos that the exposure of people in his position to asbestos dust could possibly result in a dust disease.
That, in my view, is the question I must consider.
I am conscious that in answering that question there is a great danger of deciding the matter with the benefit of hindsight. It is now known that quite minor exposure to dust released from asbestos cement products represents a risk to users. Hardies acknowledged that risk in 1978-79 by providing warnings on asbestos cement products. Later still such products were removed from the market.
The evidence about the risk
The plaintiff’s exposure to asbestos was between February 1963 and October 1979. I have already made findings of fact about the level of exposure.
Mr Semmler submitted that there was “a tsunami” of evidence indicating the defendant’s knowledge of the risks of exposure to asbestos, but, as I have indicated, the knowledge I must concentrate on is the knowledge of risk to which the plaintiff, or people in his position, were exposed during the period of his exposure. Contrary to the plaintiff’s submission that regard need not be had to the scientific knowledge, it is, in my view, necessary to look at the history of that specific knowledge.
The defendant has referred in detail to the developing state of knowledge.
Defendant’s submissions
Mr Watson submitted that knowledge about the effects of exposure to asbestos was growing between 1963 and 1979 (the relevant period). He submitted that it was not until the mid 1970s that anyone in authority contemplated a risk to an end user of asbestos cement. The products being used at ATCO were made of asbestos cement. Asbestos is present in only small proportions in asbestos cement. Mr Watson submitted that during the relevant period it was not generally believed that asbestos would be liberated from the sand and cement matrix which went to make up asbestos cement products. He conceded[27] that research showed in the late 1960s that there was a differential risk dependent upon the fibre types in the asbestos. Products containing crocidolite, one of the types of asbestos, ceased to be manufactured by Hardies after 1966.[28] The first recorded case of mesothelioma was written up in the Australian Medical Journal in 1962 by a Dr James McNaulty. The patient had been exposed to crocidolite in Wittenoom. At a conference in New York in 1964 there had been discussion about the link between asbestos and mesothelioma but the leading authorities thought that the risk was associated with the inhalation of chrysolite, another type of asbestos, but not one present in Hardies’ building products. Chrysolite was used in textiles and brake linings.
[27] T451-452.
[28] T452.
Mr Watson identified who he meant by the “leading authorities”.[29]
[29] Outline [19].
He cited four.
The first is the National Health and Medical Research Council (NH&MRC). From time to time that body issued publications dealing specifically with the risks to which end users of asbestos cement products were exposed. The first of its publications dealing specifically with “small users” was issued in June of 1978. That publication is part of Exhibit P30. In the introduction to that publication there appears this passage:
In some Australian states the use of asbestos and asbestos containing products is controlled by statutory regulations. While the need for health precautions in large scale operations involving asbestos is undisputed, this may not be so in the case of small users, such as construction firms and insulation contractors who use less than, say, 5 tonnes of raw asbestos per annum or regularly use products containing asbestos such as shown in section 4 below (section 4 includes (e) asbestos cement building materials; flat sheets corrugated sheets, pipe, moulded products, high density floor sheets). Such limited use might be considered insufficient to cause harm to health of those exposed. Asbestos hazard is related to the dose of respirable dust, that is to say, very small particles inhaled by an individual. The actual amount of asbestos processed may therefore be of much less importance than the methods of handling and use which give rise to dust.
The publication went on to note that mesothelioma appeared to be associated with blue asbestos (crocidolite).
The publication dealt with the sawing, grinding or turning by machine of asbestos products. It recommended that wherever possible a wet method of machining should be used to limit dust emission. The publication said that other precautions would not generally be required so long as adequate means were provided for the collection of the liquid used for dampening the products. The publication referred specifically to asbestos cement products. It said:
Asbestos cement (“fibro”) is a hard surfaced material, in which the asbestos fibres are reasonably bonded by cement. Work with this material can be carried out safely with handsaws and other hand tools and also with power drills. Occasional power sawing does not present a problem if limited to an operation of, say, 15 minutes in a shift, and if carried out in the open air. For longer periods dust extraction equipment should be used, or the dust should be suppressed by the use of water or an approved respirator should be used. Where water is used for dust suppression, care should be taken to ensure that power tools are electrically safe.
Plainly the knowledge leading to such a publication pre-dated the publication but that is the first published warning by the NH&MRC.
The second authority is Professor David Ferguson. He was a leading Australian and international authority in Occupational Medicine with a particular knowledge of asbestos risks. He was a member and chair of the relevant NH&MRC committees. Exhibit P33 is a booklet containing his curriculum vitae, a statement by him dated 19 February 1997 tendered in the case McCusker v Seltsam Pty Ltd and James Hardie and Coy Pty Ltd (McCusker) and a transcript of his evidence given in that case on 2 April 1997. I refer to several relevant passages in his statement:
2.1Asbestos cement products manufactured by James Hardie contained about 10-15% asbestos. Of that proportion, usually over 90% was chrysotile. I am instructed that crocidolite was omitted from new asbestos cement products in about 1968. Dust generated in the air from the other 85-90% of the products, mainly cement, was considered innocuous. Only a minute minority of the dust would have comprised asbestos fibres which exceeded 5 micrometres in length.
2.2In the mid-1970s, it was considered generally by occupational physicians such as myself working in the field of occupational lung disease that the asbestos moiety of the dust generated in the air from the tooling of asbestos cement products was innocuous because the fibres were largely combined with cement, thus producing aggregates which were either irrespirable or harmless to the lungs.
…
2.5The reasons why handing of asbestos cement products in building construction was not before 1970 considered hazardous were several. In the first place, such use was usually in the open air or at least in spaces well ventilated naturally, and on an intermittent basis so that a worker might cut some sheets in a few minutes, then fit them or undertake work with timer or other tasks unconnected with asbestos cement for the large part of a shift. All concerned in the 1960s in New South Wales was still with the risk of asbestosis among people heavily and continuously exposed to asbestos over many, usual 10 to 15 or more years.
…
2.12… There was certainly no concern with people applying asbestos cement building products in the construction industry before the early 1970s.
2.13It would not have been considered likely from the early 1950s to the mid-1970s that tradesmen such as electricians or carpenters were at risk of harm from exposure to asbestos dust from asbestos cement products.
…
2.16It was not until the early 1970s that any concern was felt by specialists in occupational health generally about the risk of asbestos disease in the construction industry in terms of the handling and treatment of asbestos cement products, as distinct from asbestos insulation or other asbestos fitted in buildings.
…
2.25In the early to mid-1970s, it was considered reasonable not to warn end-users of asbestos cement building products about any perceived health risks associated with the use of such products. There was not then a sense of waiting for adoption of the proposed Model Asbestos Regulations published by the NH&MRC (1975) [52]. In the event the Model Asbestos Regulations did not specify any warning label on the products.
2.26After the mid-1970s, provided exposure was kept below the standard and warnings on asbestos products were followed, there was not even remotely a question that exposure to dust from asbestos cement building products would put a worker such as the plaintiff at risk of asbestosis, asbestosis-related lung cancer or mesothelioma.
…
2.28To the best of my recollection, occupational physicians were of the opinion in the 1960s and 1970s that there was no convincing medical literature showing any respiratory problems arising from the end-use of asbestos cement building products.
The third authority was Professor Bryan Gandevia. He was a Professor of Respiratory Medicine. He was an early researcher into asbestos related issues in Australia and an advisor to the World Health Organisation on asbestos. Exhibit P31 is a booklet containing his curriculum vitae, a statement by him in the McCusker case dated 23 February 1997 and a transcript of his evidence in the case taken on 3 April 1997. The focus of his attention was the developing awareness of the medical fraternity of the link between the exposure to various types of asbestos and their medical sequelae. I select from his statement the following passages:
2.25Contrary to a popular view, the paper by Wagner et alcohol in 1960 was not generally accepted as showing mesothelioma to be related to small exposures. This view was more effectively demonstrated by several studies in the mid to late 1960s, notably those in and around dockyards. Similarly, knowledge concerning the relative pathogenicity of different types of asbestos, and especially the dominant influence of crocidolite and amosite, did not emerge until late 1960s, although it was earlier suspected by a few individuals. The role of fibres and the determination of specific fibre characteristics responsible for mesothelioma were only clarified in or around 1970 and in subsequent years. From a practical point of view, the significance of short or intermittent exposures did not become apparent until about the same time. Many of the exposures initially regarded as relatively small have, in fact, later been found to be quite high (eg women washing contaminated clothes).
2.26Finally, in regard to attitudes to asbestos and its problems in the 1950s, stress must be laid upon the sense of false security engendered by the evident success on the 1`931 British Regulations in reducing the frequency and severity of asbestosis, with a concomitant decline in lung cancer risk. The complacency was accentuated by difficulty in early diagnosis as outlined above. When I was in England in the early 1950s, it was generally considered that asbestosis was a disease of the past as a result of these Regulations. This turned out to be untrue largely because of the improved methods of diagnosis of relatively early or mild cases. Nonetheless, it gave the industry a considerable sense of security which was ultimately misplaced. My information is based on personal experience in industry and in discussion with UK experts at the time as well as the literature.
…
4.6Crocidolite, particularly prior to 1975, was far and away the best known cause of mesothelioma, and it remains so to date. It is still questionable whether chrysotile ever causes mesothelioma. Recently, doubts have been expressed that amosite can cause it, but on the other hand it was well known that in South Africa the cases of mesothelioma were confined to those who had been exposed to crocidolite: there was a striking absence of cased exposed to amosite. It is pertinent to remember that 95% of the world usage of asbestos was in fact chrysotile, about 3% amosite and about 2% or less of crocidolite: these approximations are roughly true for all countries. Of those mesotheliomata where there was a history of asbestos exposure, over 99% had been exposed to crocidolite, precisely the reverse of what one might expect if chrysotile were causing mesothelioma.
…
5.1It was only in the early to mid 1970s that a question was beginning to arise as to whether the use of asbestos cement products might conceivably pose a hazard of mesothelioma. I am confident that this concern would not have amounted to a widely held view, certainly if there was not crocidolite in the product. By 1975, I believe there was certainly no crocidolite in the products.
…
5.3To develop asbestosis requires a very large dose. Even allowing a concentration of 5 fibres/mil in the breathing zone of a carpenter, it would be surprising if he ever approached a threshold level. Most asbestos cement products were handled with hand tools, often in the open air, giving fibres in the breathing zone at a lower level than quoted. It is true that power tools were coming into use increasingly from about 1960, but they were required only for certain purposes and, I believe, a limited range of products. Most of the ordinary asbestos sheeting was still better handled by manual methods.
5.4It was not foreseeable in 1960 that there could be any risk in using asbestos cement products. By 1970, some doubts were being expressed regarding the possibility of mesothelioma from cement materials containing crocidolite, but to my recollection, there was no dogma on this issue. There had been work on liberation of fibres and the majority of fibres found with the use of power tools were short fibres, not considered so potentially hazardous as the long fibres. By the lat 1970s, it would have been foreseeable that a risk was associated with using crocidolite-containing material, although it would still be considered low risk relative to some other types of asbestos-containing material. I do not think any disease was foreseeable if no crocidolite was in use.
…
7.8In the period 1965-1980, the term “construction workers” implied work in the construction industry where the worker might be called upon to use asbestos cement products with quite considerable frequency. Reference to this kind of worker does not relate to what I might call the amateur user or the person employed by a small-time builder who periodically handled asbestos cement products in the open air and who probably did not use a power tool before the mid-1960s. In my opinion, this distinction was entirely implicit in the literature. Certainly I did not consider the amateur user in the above period as having any significant risk and it is still, of course, a matter or uncertainty as to whether in fact he would have any significantly increased risk under ordinary conditions of usage. With hindsight, and assuming the use of power tools and perhaps usage in inappropriate circumstances, I would certainly concede a risk with any more than a few isolated exposures to crocidolite-containing asbestos cement products. I was and remain doubtful that there would be any risk with amosite-containing products.
…
8.2The requirement for a warning is presumably closely related to the level of risk in the use of the product. An acceptable level of risk is a matter of debate and the decision is inevitably subjective.
…
8.4From around the late 1960s, at least, any material containing crocidolite would have justified a warning label. It is questionable whether medically a warning label would be indicated in the absence of crocidolite and assuming the kind of usage of the home renovator. The reason for this lies in the fact that at the time the observations of the kind of respirable dust produced even by power tools suggested that most of the dust was not particularly harmful because the asbestos was either lodge in cement dust or predominantly in short fibres.
8.5Warnings relating to the preferable use outdoors, minimal use of power saws, dust suppression where feasible by one means or another, would not have been unreasonable from the 1970s, but it is my opinion that a real pressure for labelling was essentially a social socio-political one rather than one based solely on science. Science did not, of course, oppose a warning label, but logic would dictate that to be consistent labels would have to be attached to an enormous range of products, firstly perhaps the motor car.
8.8I think it was reasonable for a doctor to maintain that there was no need for warning labels on asbestos cement products in the 1960 and 1970s. With respect to the latter time, from memory, public concern was becoming such that other considerations were probably the major influence on introducing warnings.
Finally, the fourth authority was Mrs Janet Sowden. She was, during the relevant time, an Occupational Hygienist working in the Victorian government assisting to draft the standards for application in industry. Exhibit D32 contains her Curriculum Vitae, a statement by her dated 3 March 1997 used in the McCusker case and a transcript of her evidence in that case from 1 April 1997. I reproduce several paragraphs of her statement as follows:
5.1By 1976, the hazards of asbestos were well known to the specialist medical community and several reviews were published around this time; for example, the National Health and Medical Research Council’s (NHMRC) Occupational Health Guide in 1977. In my opinion, at that time, it was believed that:
· the risk of developing any of the asbestos diseases was related to the amount of fibres inhaled;
· lung cancer appeared to be associated with asbestosis rather than asbestos exposure per se, at least in non-smoking asbestos workers; if there was any lung cancer risk associated with sub-asbestosis exposures, it was extremely small;
· the risk of lung cancer due to smoking was magnified if the smoker was also an asbestos worker;
· mesothelioma had occurred in persons with no known asbestos exposure;
· the risk of mesothelioma was strongly associated with crocidolite; was possibly associated with amosite, and was unlikely to be associated with chrysotile;
· the dose of (crocidolite) asbestos needed to cause mesothelioma was very much less than that needed to cause asbestosis.
…
6.7Throughout the early 1960s evidence began to accumulate that sub-asbestosis exposures could cause mesothelioma.
…
6.9From my reading of the literature, I believe that virtually all cases of mesothelioma reported during the 1960s and 1970s were associated with crocidolite and/or amosite or had occurred in situations where the previous use of crocidolite could not be excluded.
…
6.12In Australia, the most authoritative source of advice on occupational health until the early 1980s was , the National Health and Medical Research Council’s (NHMRC). The NHMRC was established in 1936 to (among other functions) advise the Commonwealth and States on matters of public health legislation. It had a major role in reviewing research reports in the world literature, in recommending occupational exposure standards and in disseminating occupational health advice. A brief review of NHMRC publications relevant to end users of asbestos cement follows. I believe that these documents would have been available to all Federal and State departments responsible for the administration of occupational health legislation or for providing advice to the public on such matters. In particular, I believe that the guides and codes of practice would have been widely distributed to employers by the relevant State authorities.
6.12.11973 Model asbestos regulations
· applied to any work on asbestos or on any article containing asbestos except a process in which asbestos dust could not be generated
· applied to employers and to self employed persons
· allowed for exemptions from any or all requirements (except where crocidolite was involved) where conditions of work justified such exemption
· required (unless exempted)
-exhaust ventilation (LEV) on any asbestos process
-respiratory protection if LEV not practicable
-cleaning of plant by dustless methods
-safe disposal of waste
-medical surveillance of exposed employees.
These mode regulations can in my opinion be taken as an indication of what would have been regarded as good practice at the time. As far as I know, they were not used as the basis for any legislation in NSW controlling end user exposure in the 1970s. I believe however that NSW did regulate asbestos processes under the Factories & Shops Act from 1977. In Victoria the model regulations were adopted (with some modifications ) under the Labour & Industry Act in 1978. End user operations were controlled under the Victorian regulations only if the use of power tools exceeded 40 hours per quarter.
…
6.13It is apparent that the NHMRC was becoming more cautious in its recommendations with each successive document, especially after 1979 when it recommended for the first time that all asbestos exposures should be minimized, regardless of the exposure standard. This caution is understandable in view of the rapid change in attitudes to asbestos worldwide during the late 1970s, and, particularly, in view of the report of Acheson and Gardner (13), which proposed for the first time in 1979 that all exposures to asbestos be kept as far below the relevant control limits as was reasonably practicable because it was not possible to identify a threshold for carcinogenesis.
6.14I consider that until the time of this report(i.e. 1979) it was not reasonably foreseeable that end-users of asbestos cement products would develop any disabling asbestos-related disease (including mesothelioma) where those products did not contain amosite or crocidolite and where chrysotile exposures were kept below the regulatory levels.
…
7.1I believe it was reasonable for Hardie’s not to have warned end-users of potential health hazards from the use of asbestos cement products until 1978 for the following reasons:
· During the time when the exposure standard for chrysotile and amosite in Australia was 4 fibres/ml (ie 1970 – 1979), there was a general belief that the most important health hazards from excessive exposure to chrysotile asbestos were asbestosis and lung cancer.
· The risk of mesothelioma as a result of chrysotile exposure was believed to be extremely small (if it existed at all) and to be confined to those occupations such as mining where exposures had been heavy and where there had been contamination of the parent ore body with tremolite.
· Thus, despite the inability of the experts to identify a level of exposure for asbestos below which an increased risk of mesothelioma would not occur, the standard of exposure for chrysotile to an acceptably low level.
· There was sufficient evidence that the use of asbestos cement products on building sites gave rise to relatively low exposures to asbestos which were well below the exposure standard of the day. This would have enabled Hardie’s to be confident that there was no health hazard from such use. The reasons for these low exposures were first that the fibres were firmly bound into a hard cement matrix, and secondly that dust-producing activities were both brief and sporadic.
7.2In 1979, in view of the difficulty of establishing a threshold for carcinogenesis, the UK recommended that regardless of the exposure standard for asbestos there should be an overriding requirement to reduce exposures to the lowest level reasonably practicable. This recommendation was also made in Australia in 1980. From this time onwards, I believe it was reasonably for any manufacturer of asbestos-containing materials to place warning labels on them if there use was likely to generate dust.
…
10.1In Australia during the 1970s, there was no requirement for suppliers to place warning labels on hazardous products for use in industry. Legislation clearly placed onus on the employer or the occupier to ensure safe use of materials in the workplace, not on the supplier. For example, the NHMRC’s Model Asbestos Regulations of 1973 required the occupier and/or the employer to ensure that bags or sacks containing asbestos were labelled with the words “Asbestos – do not inhale”; so did the Victorian Labour and Industry (Asbestos) Regulations of 1978. It was not until the 1980s that “right-to-know” legislation was developed in Australia and part of the responsibility to ensure safe working practices was placed on suppliers.
…
10.3Further work carried out on the cutting tool study in 1979 would in my opinion have increased the company’s confidence that the field use of its asbestos cement products did not generate asbestos levels in excess of the exposure standard; but by this time attitudes were changing, and it was no longer sufficient to keep exposures below the exposure standard. The overriding requirement was that they be kept as low as practicable.
10.4For these reasons, I consider that it was reasonable for Hardie’s not to have warned a carpenter or builder, such as the plaintiff, or his employer that he was at risk of developing an asbestos-related disease from the use of asbestos cement products prior to the introduction of Hardie’s warnings in 1978.
The Plaintiff’s submissions
Mr Semmler traced the history of the knowledge by health authorities of the risks of exposure to asbestos. He began from 1938. I will not canvas that early history because it refers to asbestos generally and not the various types of asbestos. It also refers to exposure to workers in the process of mining or manufacturing asbestos. Certainly from those early times, asbestos generically was known to be a risk for workers exposed to high concentrations.
Before 1963 there were no reports of risks to workers in end user contexts. I do not overlook a report by Dr G Thomas in the Medical Journal of Australia, January 1957 which includes a reference to workers engaged in “sawing, cutting and finishing any product containing asbestos – for example brake linings, asbestos sheeting…”. However the report was of a survey of workers described as “asbestos workers”.
In February 1965 Professor Gandevia wrote to the personnel manager of Hardies referring to research into asbestos risks. The context of the study he referred to is not made clear, but Professor Gandevia did say that exposure could be linked to illness where it is “quite small and quite remote in time”.[30]
[30] Exhibit P42 p 66.
In April 1966 the director of the division of Occupational Health in New South Wales, Dr Bell, said:
The accumulating mass of evidence in regard to asbestos and lung cancer caused by relatively short exposure to asbestos is such that much more stringent regulations relating to dust control within factories and the handling of asbestos will have to be formulated and applied by his division…
The new regulations would even go as far as requiring zero asbestos dust within the factory as has been laid down in other countries.
This was however in the context of factories manufacturing or processing asbestos.
In July 1966 the defendant’s doctor addressed the defendant’s factory managers’ conference in Sydney. The following observations were made:
1.There is no safe upper limit for asbestos. In the US and Australia maximum allowable pollution is 5mppcf. The aim in the United Kingdom is nil.
2.Any exposure is dangerous and cumulative.
3.Asbestos is now suspected as an environmental pollutant in areas around factories which use asbestos.
4.Main danger to people living within half a mile of source. Cases of cancer of chest lining shown to be more prevalent in these areas by studies in London and Finland,
5.Almost inevitable that any lung cancer that develops in employees who have had even a minimal exposure to asbestos will be classified by courts as compensation cases.[31]
6.The defendant was aware of the UK asbestos research council’s “Recommended code of practice for handling, working and fixing of asbestos and asbestos cement products in the building and construction industries”.
[31] Exhibit P42 pp 189-90.
This UK code dealt with industries such as that where the plaintiff worked. The preface to the code itself provides some insight into the understanding of the UK authorities of the risks to which construction workers might be exposed.
The Asbestosis Research Council (UK April 1967)
Present factory regulations recognise asbestos as an industrial disease which could arise from the inhalation of asbestos dust. The regulations, which stipulate rules for the protection of work-people engaged in the manufacture of certain types of asbestos products, do not include any special requirements relating to the handling of products containing asbestos for use in building construction.
The Ministry of Labour is now considering extending the regulations which apply to the handing of asbestos and asbestos cement products in factories so that they cover wider applications of handling and processing and, while it is not certain to what extent this change will apply to the building and construction industries, it is felt that some preliminary guidance should be given. This guidance takes the form of a Recommended Code of Practice which is prepared in anticipation of the extension to the regulations.
The use and manipulation of asbestos and asbestos cement products is very diverse and ranges from the fixing of an occasional single sheet to extensive operations involving cutting or machining by power-driven equipment. While care should always be exercised, special precautions are only necessary when there is a possibility that operatives may inhale asbestos dust as a result of proximity to cutting, grinding or similar operations.
Finally it should be emphasised that there is no hazard in the handling, working or fixing of these products, provided that the simple precautions outlined below are followed. For convenience, the Recommended Code of Practice is divided into two sections:
a. for factory conditions and confined spaces;
b. for site working.
There are then specific recommendations relating to factory work and on site work. In relation to factory work where cutting, grinding or turning by mechanical means was being carried out the following was recommended:
2.1.1When mechanical cutting or machining takes place, efficient dust extraction equipment should be installed, or respirators of a type which are approved by the Factory Inspectorate should be worn.
For site work the following was recommended:
3.1.1In general, the same recommendations apply as for factory cutting, bearing in mind that the site operation will be of a temporary nature and will often take place in the open air. Few site-available power tools have dust exhaust attachments. Where these are not available, it may well be possible to use a portable dust exhaust unit.
3.1.2Where it is not possible for an exhaust system to be used and where there is still a risk of inhaling asbestos dust, an approved respirator should be worn by the operative…
Respirators were also recommended where there was hand cutting and working.[32]
[32] Exhibit P42 pp 230-31.
In October 1967 the former medical consultant to James Hardie and Co who had become the company’s medical officer, Dr SF McCullach, wrote to the secretary of the Asbestos Research Council in England in the following terms:
… There appears to be developing an increasing tendency to question the safety of the finished product asbestos cement. Thus, it is suggested that asbestos cement water pipes and tanks should be thoroughly washed out before being put to use.
Quoting apparently from the British Medical Journal, Dr McCullach extracted this quote:
It is unlikely that the cutting of a few lengths of asbestos sheeting for domestic purposes would be dangerous. Nevertheless it would be inadvisable to saw asbestos sheeting in a confined space.[33]
[33] Exhibit P42 p 247.
I pause to say that the evidence of the defendant’s knowledge of the risks of asbestos have been helpfully collected by the plaintiff in a document entitled “Important Evidence Concerning Foreseeability”. I have read in full all of the evidence referred to but I have not found it helpful to rely on every example given. I give as an example the reference to a paper written by Dr Rathus, Director of Industrial Medicine, State Health Department, Queensland, entitled “Pneumoconiosis in Queensland” which did refer to a man diagnosed with mesothelioma after minimal exposure to asbestos. The quote provided is as follows:
The patient’s exposure consisted of lining fuse boxes with asbestos sheets in his job as an electrician over a period of 5 years. Each job took only half an hour on about two occasions.
However the concluding sentence in that paragraph[34] says as follows:
The association with asbestos may be regarded as dubious, but a faint aura of uncertainty unhinges logic in the face of mounting data inculpating such trivial episodes.
[34] Exhibit P42 p 274.
In March 1968 a booklet was published by the Asbestos Information Committee on asbestos in the UK. It is entitled “Building and Industrial Products Occupational Exposure”. The booklet included a section in question and answer form for use by workers. The following questions and answers appear:
QIs there any danger in cutting, drilling or machining asbestos and asbestos cement products?
AProvided the recommended Code of Practice is followed, it is considered that there is no danger to health involving these operations.
QWhat precautions should be taken when handling and machining asbestos and asbestos cement products in factories and confined spaces?
AObviously in a confined space greater care needs to be taken, but again the relevant Code should be followed.
QHow can I avoid dangerous levels of dust?
ADust extraction equipment should be provided for all mechanical work, or efficient respirators should be worn. Hand cutting and working are safe without a respirator when in the open air or when carried out intermittently in large, well ventilated spaces.
QIs the standard dust extraction equipment used for woodworking machinery suitable for materials containing asbestos?
AThe standard equipment used for woodworking is not always considered suitable for materials containing asbestos because fine dust requires more powerful extraction, and special arrangements for the collection of dust will be required. Advice from a competent dust extraction engineer should be taken on this matter.[35]
[35] Exhibit P47 pp 283-4.
In October 1968 a Director of the defendant wrote to an officer of the PMG in New Zealand enclosing a draft letter to the Acting Engineer in Chief of the GPO in New Zealand in relation to asbestos dust control. He appears to being speaking of the risks to post office workers using asbestos cement products. The draft letter says:
Whether the dust liberated during the cutting and machining of asbestos cement products is clinically harmful is not proven but it certainly cannot be beneficial. The industry point of view is that it should be regarded as harmful and that control measures should be adopted.
The letter forwarded a copy of the UK Code of Practice referred to above. The author commented that respirators were useful only for intermittent work but a permanent solution was to install exhaust systems over, or adjacent to, cutting tools so that the dust could be removed as soon as it was liberated.[36]
[36] Exhibit P42 p 361.
In October 1968 there was published in the New Yorker magazine an article by a journalist, Paul Brodeur, who traced the history of the link between asbestos and cancer and mesothelioma. Much of the article was devoted to the work of Dr Irving J Seliknoff, then head of the Division of Environmental Medicine at the City’s University Mount Sinai School of Medicine. He was a pioneer in the field of asbestos epidemiology. Dr Seliknoff was in the process of conducting research into the link at the time of the article. Dr Seliknoff said:
The possible sources of environmental contamination are numerous. Mining and milling operations, manufacturing processes, and the delivery and storage of finished products constitute one part of it. The constant use of asbestos materials in the construction industry is another, and the destruction and deterioration of asbestos products in the community at large constitutes a third. There is no question in my mind that unsuspecting people are being exposed to small quantities of fibres from such sources as torn ironing board covers and pot holders and who knows how much asbestos is inhaled by hobbyists engaged in do-it-yourself projects around the house – like sawing up wall board, mixing crack filler compounds, insulating pipes with asbestos materials and repairing furnaces and boilers with asbestos cements. I agree with those who suggest that small numbers of fibres may be liberated from many products in widespread use, such as asbestos cement pipe and asbestos filters, which are employed in the food and pharmaceutical industries but we have no information that this carries a disease potential… Improvements in the practice of industrial hygiene are needed to eliminate unnecessary exposure among asbestos workers and men in other building trades, and awareness of the potential risks of environmental contamination is needed until our studies indicate just how far out into the general population the problem extends. All I can say is that the public should be made aware of the problem, and that no one, particularly children and young people should be unduly exposed.[37]
[37] Exhibit P42 pp 372-3.
Exhibit P25 was the Personal Assessment Inventory (PAI). It consisted of 27 questions on two pages. One of the questions asks “I have visions in which I see myself forced to commit crimes”.
Exhibit P26 is referred to as the SAPAS. It consists of 8 questions on one page. No questions appear unusual.
Exhibit P27 is the SIMS form. It consists of 75 questions on 2 pages. Those questions require a true or false answer.
Question 1. Sometimes I lose all feeling in my hand so that it is as if I have a glove on.
Question 11. The capital of Italy is Hungary.
The purposes of the questionnaires were explained in the 17 pages of appendices attached to Dr Ewers 29 page report dated 21 November 2008. I do not doubt the usefulness of such questionnaires for some purposes but, at the very least, some reasonable professional explanation should be given to a patient who is expected to spend one and half hours filling them out. In the absence of such an explanation it is hardly surprising that someone in the position of the plaintiff might be irritated by the time he got to see the doctor. The plaintiff said Dr Ewer spent some 20 minutes with him during the consultation. Dr Ewer said that he spent 45 minutes with him. There was only one consultation. In the circumstances I think that Dr Ewer’s questionnaires were unhelpful and counterproductive. They diminished Dr Ewer’s ability to gain reliable insights into his patient’s condition.
Dr Branson’s second consultation with the plaintiff was after the plaintiff had seen Dr Ewer’s first report. The plaintiff was upset about some of the things Dr Ewer had said about him. Dr Branson asked him about his appointment with Dr Ewer. The plaintiff agreed that he was probably frustrated during that appointment. Dr Branson believed that Dr Ewer was incorrect to attribute the adjustment disorder to the plaintiff’s concerns about the legal process or the prostate cancer. I agree with him. I also agree with Dr Branson’s description of the plaintiff. It accords with my own appreciation of the plaintiff in the witness box.
I find that the chronic adjustment disorder is one arising from the plaintiff’s reaction to the discovery of the pleural plaques and the pleural effusion. It is also a reaction to the consequences of the pleurodesis and the plaintiff’s anxiety about the misdiagnosis of mesothelioma. The misdiagnosis has led the plaintiff to be somewhat fearful of contracting the disease. This anxiety exists notwithstanding that the diagnosis proved unfounded and the risk of the plaintiff contracting the disease is minimal.
I find that the plaintiff’s psychiatric condition, although mild and likely to continue to improve, is the result of events associated with the dust disease. Those events include:
1. The diagnosis of, and operation for, the pleural effusion.
2. The diagnosis of pleural thickening.
3. Continuing shortness of breath, and
4. The misdiagnosis of mesothelioma.
While the condition will further improve, I accept Dr Branson’s opinion that the condition will continue to affect him. It will not entirely disappear. I reject Dr Ewer’s apportionment of contribution by the legal proceedings and the prostate cancer. I reject his opinion that the psychiatric condition will disappear on resolution of the litigation.
Loss and Injury – Issue 1(e)
Having completed the discussion of the medical evidence I turn to identify the plaintiff’s loss and injury caused by the dust disease.
Until 2005 the plaintiff was asymptomatic for any dust disease. He said that he had only ever had one sick day in his 17 years working for ATCO. His first experience of breathlessness was in the week before he collapsed in July 2005. He and his wife were being intimate and he had become breathless. They had both become worried about his condition. Their sexual relations did not resume after that. The plaintiff collapsed on 29 July 2005, principally from the effects of a duodenal ulcer.
The dust disease was discovered during his hospitalisation following that collapse. The plaintiff was then 72. He had led a very active and industrious life. He had had a successful career in the building industry and had retired aged 64. He had, and still has, a satisfying family life. He has good relations with his wife and two daughters and with their families. He maintains good relations with his former son-in-law, Mr Trimboli who was called as a witness. The plaintiff and his wife have travelled overseas. In the 1990s they took a three week trip to Hawaii, San Francisco and Scotland. In 2004 they had taken another trip, this time to Scotland, and they had both been able to undertake vigorous walking while away. The plaintiff was a very proficient and productive joiner. Before 2005 his principal interest was in making furniture. He had done it more intensively after he had retired from work. Evidence was lead demonstrating the extent of the plaintiff’s proficiency and productiveness in this pursuit. There were photographs of his substantial stocks of timber and his extensive workshop. There were photographs of many pieces of furniture he had made. He made furniture for his own home and for those of his extended family. He was an active gardener. Photographs of his garden demonstrate an attractive garden that was meticulously maintained. Whereas he had done the maintenance before 2005, he now required the help of family and friends to do lawn mowing and any heavy work. He had been an able renovator. He had renovated the roof and the fencing of his own house and had done landscaping, paving and painting. He had done the same sorts of jobs on two houses his children had renovated.
None of this evidence was contested. Nor were the changes that have occurred in the plaintiff’s life since 2005 contested. The cause of the changes is challenged by the defendant but not the changes themselves.
For about 3 months after the pleurodesis in August 2005 the plaintiff suffered considerable pain. He needed constant care for those 3 months, care which his wife provided. He continues to suffer right-sided chest pain occasionally.
He lost interest in his joinery. He stopped doing it altogether. He sold his stocks of timber and his workshop tools and machinery. He suffers breathlessness. He has stopped doing any heavy work in his garden. His family and neighbours now help with heavy work. The plaintiff’s breathlessness caused the cessation of sexual relations between him and his wife. That was in 2005. He becomes breathless climbing even short stairs.
The plaintiff suffers a chronic adjustment disorder. It will improve further but not disappear altogether.
While most of these matters were not contested I am satisfied that the plaintiff was both an honest witness and an accurate and reliable one. I accept his evidence. I make the same observations about the evidence of his wife and former son-in-law, Mr Trimboli. Mr Trimboli was married to the plaintiff’s elder daughter. The couple separated 3 years ago but Mr Trimboli still sees the plaintiff at least weekly or fortnightly. Mr Trimboli gave evidence of the plaintiff helping renovate two houses at Kadina.
I find that the specific symptoms and injuries suffered by the plaintiff are:
Breathlessness, the consequence of pleural thickening;
Occasional right-sided chest pain, the result of the pleural thickening;
Chronic adjustment disorder with mixed anxiety and depressed mood, the result of the events surrounding and following the pleurodesis in 2005.
Damages – Issue 2
General Damages
The plaintiff submits that I should not attempt to fix quantum by reference to awards that have been made by Courts in South Australia. I should feel free to fix quantum taking into account what appear to be the higher awards made by the Dust Diseases Tribunal in New South Wales. In my view it is clear that I should follow the practice in South Australia. In Ewins v BHP Billiton Ltd and Ano[81], Doyle CJ said that damages should be awarded in accordance with the general approach taken in this State.[82] Having said that I have read and had regard to the interstate cases selected by the plaintiff in his written submission on damages. Those case are of some assistance where there are so few comparable cases in South Australia. I have also read the New South Wales cases referred to me by Mr Watson. I will refer in due course to the South Australia cases.
[81] (2005) 91 SASR 303, [2005] SASC 95.
[82] [62], [69]-[70] and [72].
The parties are a long way apart in their submissions on quantum. The plaintiff seeks $150,000, $50,000 for past general damages and $100,000 for future. The defendant submits that the quantum should be in the order of $25,000.
I refer to the salient findings that bear on damages for pain and suffering and loss of amenities. Before suffering his dust diseases the plaintiff was enjoying a happy retirement. In July 2005 he was 72. He had been retired for about 8 years. He had taken pleasure in his retirement activities. He had been very productive in his joinery pastime. He had made attractive furniture for his own house and for the houses of his children. He had undertaken home renovations at his own house and those of his children. He enjoyed gardening and maintained an attractive garden.
He has now given up his woodworking. He needs outside help with heavy gardening and the gardening he does do is interrupted by rests due to breathlessness.
He suffers breathlessness which makes climbing stairs uncomfortable. For exercise he walks 5 kilometres in the morning but has to take rests. He has taken up interests in playing the piano and accessing the computer.
The plaintiff lost the sexual side of his relationship with his wife in July 2005.
Since August 2005 the plaintiff has suffered from a chronic adjustment disorder with mixed anxiety and depressed mood. The condition has improved over time and is likely to continue to improve but never quite disappear. The plaintiff had the trauma of the onset of the illness in July 2005 and the slow painful recovery between August and November of 2005. The plaintiff was told in early August 2005 that he was very likely to be suffering from the fatal condition, mesothelioma. That diagnosis remained extant for about a week after which the biopsy showed no malignancy. The plaintiff’s personality has caused him to suffer a greater emotional reaction to those circumstances than many other people. Despite the optimistic outlook of his doctors between August 2005 and now, the plaintiff has remained worried. He has been worried about the possibility of contracting mesothelioma, although the prospects of him doing so are slight. Dr Antic thought the chances were no higher than 5 per cent. The plaintiff is worried about his breathlessness and the occasional right sided pain. He suffers a 10 to 15 per cent loss of function of his lungs.
Associate Professor Holmes thought that there was a 20 to 25 per cent risk of a left sided pleural effusion occurring. Associate Professor Holmes thought that the plaintiff was at a greater risk than an ordinary non-smoker of contracting lung cancer because of his exposure to asbestos, but he did not quantify that increased risk. Associate Professor Holmes did not think that the plaintiff’s life expectancy had been adversely affected.
A number of decisions of the New South Wales Dust Diseases Tribunal were drawn to my attention both by Mr Semmler and Mr Watson. While they are of limited assistance they bear out what each counsel has submitted. The cases cited by Mr Semmler[83] awards in excess of $100,000 for general damages are made in cases that bear some similarity to the plaintiff’s. On the other hand the cases cited by Mr Watson[84] demonstrate that other cases bearing some similarity to the plaintiff resulted in awards of the order of $25,000 to $35,000.
[83] Peter Michael Callinan v Comcare [2006] NSWDDT 225 (4 August 2006), John Downes v Amaca Pty Ltd [2008] NSWDDT 25 (1 October 2008) and Adrianus Gregoris Marie Bakker v WorkcoverQueensland and Ors [2008] NSWDDT 37.
[84] Russell v Cockatoo Dockyard Pty Ltd and Ano [2004] NSWDD 7 (1st April 2004) and Murrell v Steveadore Industry Finance Committee [2005] NSWDD 2 (8 February 2005).
I have also had regard to some older cases from South Australia[85]. The two most recent South Australia cases[86] were cases involving plaintiffs suffering from the later stages of mesothelioma.
[85] Raneberg v BHP (1993) SASC (371/92),. Mosley v The Broken Hill Pty Co Ltd [1998] SASC 6522.
[86] Ewings v BHP Billiton Ltd (2005) 91 SASR 303 and Reynolds v Comcare [2006] SADC 136
I must base my assessment on the individual circumstances of the plaintiff. Bearing in mind how the dust diseases have affected his condition I award the sum of $80,000 for general damages, allocating $35,000 to past pain and suffering and $45,000 to the future.
I will order that interest be paid on the component for the past at the rate of 4 per cent from 29 May 2005. I will hear further from counsel on the quantum for interest.
Out of pocket expenses – past and future
Having reviewed the transcript I am unclear whether the parties had agreed those expenses generally or whether they had only agreed on a single item (see schedule of Out of Pocket Expenses and T958-967 and T991). I invite counsel’s further submissions on that topic.
Griffiths and Kerkemeyer damages
The plaintiff has set out his claims in a schedule. The first claim is for his wife’s visits to him in hospital between 29 July and 18 August 2005. While there might be a question about the extent to which the visits and the travel involved are compensable, the claim for this period is modest and the defendant accepts it.[87]
[87] T269.
I would notionally allow the claim of $2,118.60.
There is then a claim for the assistance given by the plaintiff’s wife in the home while her husband convalesced. The claim is for house cleaning, laundry, shopping, meal preparation, transport and attendant care such as assistance with showering, dressing and medication. Mrs Abel’s evidence was to the effect that her care was at its most intense for 6 weeks, around 5 hours a day, then down to 3 or 4 hours a day towards the end of 3 months. Things were back to normal by November 2005. In addition to the work inside the house, family and friends did all of the gardening and outside maintenance for about 3 months.
Claims of this sort should be calculated by reference to the commercial cost of such services but they should be kept within reasonable limits. It is not necessary to “catalogue the minutiae of assistance”[88]. The plaintiff has provided an itemised schedule of the claim. The hours claimed are well inside the estimates given by Mrs Abel. I accept her evidence. The claimed hourly rates are not, as I understand it, in dispute.[89] The claim is for $7,403.49. I would notionally allow that claim in full.
[88] Kite v Malycha (1998) 71 SASR 321 at 351.
[89] T968.
The third aspect of the past care is a claim for the period from 1 November 2005 to the present. It is for garden and home maintenance. The claim is for $12,485.86. I review the evidence on the topic of garden and home maintenance. The plaintiff said that before July 2005 he did all the gardening. That included climbing up on ladders and doing overhead pruning as well as cleaning gutters. It included painting and small repairs. After he was hospitalised all the garden and home maintenance was done by his son-in-law Mr Trimboli and his neighbour. My impression is they shared the work. Mr Trimboli said that between him and the neighbour they did 2 to 4 hours a week for a couple of years.[90] My impression is that toward the end of that time the plaintiff was trying to do some of the work. He started doing the mowing and doing the lighter work.
[90] T210.
From before Christmas 2008 he has done his own gardening except for the overhead work such as pruning and cleaning gutters and very heavy work. Mr Trimboli said that he would now help out in the garden for between 2 and 4 hours a month. The plaintiff said that while he now does the gardening he has to keep stopping. He said that the garden was not very big.[91] The photographs of the front garden would suggest that the plaintiff’s house is on a quarter acre block with a small but meticulously kept front garden. There are no photographs of the back garden. The plaintiff’s schedule of claims under this heading divides the hours spent on gardening and maintenance by people other than the plaintiff in a way that is not really reflected in the evidence. It suggests that there was a more intensive contribution by others of 2 and a quarter hours a week for 2 and a half years and a less intensive period of 1 and a quarter hours a week for 2 years. Doing the best I can with the uncontested hourly rates for labour and the evidence I have heard I would allow a claim for home maintenance and garden maintenance between 1 November 2005 and the present at approximately $10,000.
[91] T159.
Putting together the three components under this general heading I would award $19,500 for total past care.
In considering future expenses it is necessary to have regard to the plaintiff’s life expectancy. In accordance with the Median Life Expectancies, Australia, 2009, the plaintiff’s life expectancy would be 11.53 years at the plaintiff’s 76th birthday (14 February 2009). From the present that would be approximately 10 years. I assume a life expectancy of 10 years. The claim is for garden maintenance (including mowing) for 1 hour per week and home maintenance such as cleaning gutters, painting and small repairs at 1 hour per month.
The claim is divided into two parts. The first part assumes no change in the plaintiff’s present condition except that occasioned by age. The plaintiff’s breathlessness will continue and may deteriorate by the natural aging process. The claim for that component is $19,440.95 but it includes one hour a week for garden maintenance which I think is not borne out by the evidence. I would nevertheless accept the aging process may bear on the disability in such a way as to require more outside help in the garden in the future. I would allow a notional figure of approximately $15,000 for that component.
There is then a claim for care following surgery and hospitalisation if the plaintiff suffers a recurrent pleural effusion. Associate Professor Holmes thought there was a 25 per cent chance of that occurring in the left side. I accept his evidence in that regard. The plaintiff’s claim is for a period of 6 weeks using the same hours and hourly cost as was used in the period of past hospitalisation. There is then a final component of reduced care comparable with the period during convalescence. The total claim in that eventuality is $7,403.49. Taking into account the 25 per cent risk of that occurring, the quantum becomes $1,850.87.
I would allow a total figure for future care at $17,000.
Section 9(3) - Sullivan v Gordon Damages
Section 9(3) of the Act provides:
(3)Despite any other Act or law, the Court must, when determining damages in a dust disease action, compensate, as a separate head of damage, any loss or impairment of the injured person's capacity to perform domestic services for another person.
Note—
This subsection is intended to restore the effect of Sullivan v Gordon (1999) 47 NSWLR 319.
Sullivan v Gordon[92] was a case which recognised that a disabled plaintiff who had lost the capacity to care for a child or children is entitled to be compensated for his disability. Subsequent cases have applied that principle toward the care of persons for whom the plaintiff had a legal obligation to care.
[92] (1999) 47 NSWLR 319, [1999] NSWCA 338.
The plaintiff claims $121,048.26 under this heading, $54,245.92 for the past and $66,802.34 for the future. The basis of the claim is that the plaintiff should be compensated because he is no longer able to provide for his family the furniture he once could. The sum arrived at is computed on the basis that the plaintiff would spend 8 hours a week pursuing his interest in woodwork. The plaintiff submits that I should regard that activity as a domestic service.
I reject that submission. I have already referred to the skill and energy that the plaintiff applied to his pastime. The furniture he produced was, I am sure, highly valued by his wife and family. I have seen photographs which support the plaintiff’s evidence that the items were of a high quality and were used in the house. Nevertheless the provision of furniture to enhance the amenity of the plaintiff’s own household and those of his children cannot be regarded as a domestic service within the meaning of the Act. Mr Semmler was unable to refer me to any authority in support of the claim. I make no award under this heading.
Exemplary damages
Section 9(2) of the Act provides:
(2)The Court should make an award of exemplary damages in each case against a defendant if it is satisfied that the defendant—
(a) knew that the injured person was at risk of exposure to asbestos dust, or carried on a prescribed industrial or commercial process that resulted in the injured person's exposure to asbestos dust; and
(b) knew, at the time of the injured person's exposure to asbestos dust, that exposure to asbestos dust could result in a dust disease.
This case appears to be the first case in which exemplary damages pursuant to the section have been sought.
At common law exemplary damages are punitive in nature. Their purpose is to punish parties who have engaged in conscious wrongdoing. In Trevorrow v South Australia (No 5)[93] Gray J referred to High Court and other authorities which bear on the circumstances in which exemplary damages will be awarded. Describing the conduct that calls for such an award, expressions such as “conscious wrongdoing in contumelious disregard of another’s rights”, “reprehensible” and “flagrant instances of conscious wrongdoing” are used.
[93] (2007) 98 SASR 136 at [1204] and following.
Although exemplary damages may be awarded in negligence cases, those awards are likely to be "unusual and rare".
In Gray v Motor Accident Commission, Gleeson CJ, McHugh, Gummow and Hayne JJ observed:
[E]xemplary damages could not properly be awarded in a case of alleged negligence in which there was no conscious wrongdoing by the defendant. Ordinarily, then, questions of exemplary damages will not arise in most negligence cases be they motor accident or other kinds of case. But there can be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff. Cases of an employer's failure to provide a safe system of work for employees in which it is demonstrated that the employer, well knowing of an extreme danger thus created, persisted in employing the unsafe system might, perhaps, be of that latter kind.[94]
[94] Trevorrow [1213]
Exemplary damages may be awarded where deterrence cannot be achieved.[95]
[95] Trevorrow [1210]
Mr Semmler submitted that s 9(2) removes the requirement for reprehensible conduct of the sort required by the common law. The section codifies the circumstances in which exemplary damages should be awarded. In a negligence case the circumstances need not be “unusual or rare” before an order can be made. An order for exemplary damages should be made even when part of the defendant’s knowledge is imputed by the operation of the section. Pursuant to sub-s (2)(a) the court might find that the defendant knew that the injured person was at risk of exposure to asbestos dust by proof either of that knowledge, or by imputed knowledge based upon the plaintiff’s carrying on a prescribed industrial or commercial process that resulted in the injured person’s exposure to asbestos dust. Subsection 2(b) does require the court to be satisfied that the defendant knew at the time of the injured person’s exposure to asbestos dust, that that exposure to asbestos dust could result in a dust disease.
If, contrary to that submission, the Act does not significantly change the circumstances in which exemplary damages should be awarded, the plaintiff submits that the defendant has, in fact, engaged in contumelious conduct. In a memorandum there is set out evidence of that alleged conduct is set out.
I deal with the second argument first and consider whether the evidence does demonstrate that the defendant has engaged in conduct that would warrant an award of exemplary damages at common law.
The common law authorities suggest that the impugned conduct must be directed towards the individual wronged or the class of persons to whom the individual belongs. In the passage in Gray v The Motor Accident Commission set out above, the High Court referred to the “contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff”. The court went on to the workplace example. This observation leads me to reject Mr Watson’s submission that exemplary damages could not be awarded unless his client’s conduct was directed to the plaintiff personally. I appreciate that argument was partly based on the reference in sub-s 9(2) to “the injured person” but it would be anachronistic if the perpetrator of reprehensible conduct could avoid responsibility to a member of a class of people it had wronged simply because it did not know the individual.
On the other hand the class of persons cannot be so wide as that suggested by the plaintiff. Most of the written material referred to by the plaintiff and most of Mr Semmler’s oral submissions referred to the dangers of asbestos generically and to users indiscriminately. I have already made findings that the defendant’s liability to the plaintiff rests upon the foreseeability of risk to people in the plaintiff’s position and during the time of the plaintiff’s exposure. I have found that the defendant has failed to discharge the onus resting on it to prove on the balance that it did not know that people in the plaintiff’s position would be at risk of contracting a dust disease. People in the plaintiff’s position are occupational end users.
As the evidence of the growing understanding of the dangers of asbestos demonstrates, there was virtually no appreciation of the risk to end users when the plaintiff began working with asbestos cement products in 1963. I have found that by the late 1960s there was sufficient knowledge available in relevant informed circles in Australia to conclude that the defendant had not proved it did not also have that knowledge. Nevertheless as the evidence shows, there was not such a depth of understanding about the risks that prominent medical and occupational specialists, unions and regulatory authorities were doing any more than raising concerns about the risks to end users.
It is against that background that I refer to the only three pieces of information referred to by the plaintiff and which do relate to the defendant’s attitude to end users such as the plaintiff.
In September 1971 the defendant’s doctor, Dr McCullagh, discussed with Dr Baldwin of Fletchers in New Zealand (one of the defendant’s competitors) a proposed Code of Practice. He noted when reporting to management[96]:
I believe that the proposed code of practice, with some of its positions so stringent as to be, I suspect, unenforceable and its proposed public notice warning people that asbestos products are being used, could bring a prodigious amount of harm to the industry and that it is unlikely to do any good, though I did not express myself is such strong terms to Dr Baldwin… Generally divisions of occupational health and government health departments have quite enough on their plate and, once they are satisfied that an industry is keeping its own house in order, they are only too happy to turn their attention elsewhere…
[96] Exhibit P42 p 441-442.
In June 1972 the defendant stated in a progress report[97]:
… exposure of many men to asbestos concerns us but not so much as the end user. He stands between us and our market. If the use of our product becomes the reason, or the excuse for industrial action or is too hedged about by regulatory provisions, people will simply cease to use it… It is true that power saws produce a greater cloud of dust than hand tools… the end users will almost certainly be advised before long by a code of practice and may well be controlled by regulations: he may also be the instrument of industrial action, and what happens to the end user is what happens to us.
[97] Exhibit P43 p 479-480.
In July 1972 the defendant’s doctor noted in an inter house letter[98]:
… it is not our intention to issue advisory literature or to place warning labels on the cartons of our products … we will await the mode regulations of the NH&MRC.
[98] Exhibit P43 p 482.
These pieces of evidence have to be seen in the context of the level of understanding of the risk at that time. If the risk to end users was high and well known to be high, then there is a degree of reprehensibility about what was said. If the risk was thought to be low then these comments would not appear so reprehensible.
All of the evidence I have seen suggests that even as late of 1975, the risk to end users was not generally thought to be high.
Mr Semmler submitted that there was a culture of secrecy by the defendant about the risks of asbestos generally. Mr Watson pointed to a good deal of sharing of information with specialists in the field and regulatory authorities. Despite the best efforts of both parties to demonstrate a general attitude by the defendant to the risks of asbestos during the relevant period, I am unable to form a definitive view. Some pieces of information suggest a company anxious to prevent wide publicity of the risks and other information suggests cooperation and sharing of information with experts in the field and with regulatory authorities.
In the circumstances, I do not think that the defendant’s conduct could be regarded as so reprehensible that exemplary damages would be awarded if common law principles were applied.
The question then is whether the Act provides different criteria for judging conduct which requires an award of exemplary damages.
Mr Watson submits that the Act does not change the criteria. He submits that the common law restraints on the awarding of exemplary damages remain in place. He submits that s 9(2) of the Act is penal in nature so that any ambiguity must be resolved against extending the application of a penalty.[99] Mr Semmler submitted that s 9(2) is part of an Act which is beneficial and remedial in nature. In any event, he submits there is no ambiguity.
[99] Beckworth v The Queen (1976) 135 CLR 569.
While I accept that the purpose of the Act is beneficial and remedial, it is I think clear that s 9(2) is penal in nature. Exemplary damages are awarded to punish rather than to simply compensate. Further, it seems to me, that there is ambiguity about the subsection.
It is ambiguous whether the subsection requires proof of reprehensible conduct. There is also an ambiguity about the interpretation of the meaning of the words “that resulted in” in sub-s 2(a).
I deal with the first of those ambiguities. Section 9(2) requires proof of two preconditions before an order for exemplary damages must be made.
The first precondition concerns the defendant’s knowledge of the plaintiff’s exposure to asbestos dust. That precondition may be proved in two ways. The first is by proof of actual knowledge. The second is by way of imputed knowledge.
I have already found that the defendant has not succeeded in proving on the balance of probabilities that it did not know that people such as the plaintiff would be at risk of contracting a dust disease. To prove negligence the plaintiff has to establish that the defendant foresaw, or should have foreseen, that risk. Implicit in that finding is a finding that the defendant knew that the plaintiff was at risk of exposure to asbestos dust. Exposure to dust is the mechanism by which the risk of injury arises. I have effectively found that the defendant knew the plaintiff was at risk of exposure to asbestos dust.
The second precondition is more ambiguous. There is no doubt that the defendant carried on a prescribed industrial commercial process within the meaning of Schedule 2 of the Regulations. It did so by both manufacturing products containing asbestos and selling them. Mr Watson submitted that the words “that resulted in” mean that there must be a causal link between the carrying on of the prescribed process and the plaintiff’s exposure. In support of that argument he cited Pickersgill v Freightbases Pty Ltd[100]. He submitted that the Regulations really refer to the employment cases. They really apply to employees of the manufacturer. The difficulty with that argument is that the Regulations include sellers of products. While I would otherwise accept that the words “that resulted in” do import a causal link, I think the Regulations provide the causal link between the manufacturer and the purchaser. The purchaser in this case is the plaintiff’s employer.
[100] [1983] 3 NSWLR 117.
Thus in this case the plaintiff has established the first precondition in each of the two possible ways.
The second precondition is that the plaintiff must prove that at the time of his exposure to asbestos dust the defendant knew that that exposure could result in a dust disease.
Again I have already implicitly made a finding to this effect. As a necessary part of the proof of negligence I have found that it was reasonably foreseeable that someone exposed, as the plaintiff was, to asbestos dust might suffer a dust disease. I think that at the time of the plaintiff’s exposure the risk was thought to be slight but it was nevertheless foreseeable.
This knowledge is however far removed from the knowledge required by the High Court in Gray (supra) before an award may be made for exemplary damages. The High Court’s words were “… well knowing of an extreme danger thus created [but persisting] in employing the unsafe system …”.
The interpretation urged by the plaintiff is that in any case where negligence is proved, however slight the risk, exemplary damages must be awarded.
In my view that interpretation is untenable. “Exemplary damages” is a term of art interpreted by the common law to require proof of reprehensible conduct which requires punishment. In my view s 9(2) must be read with those common law considerations in mind. Unless the plaintiff proves reprehensible conduct deserving punishment, the requirement to award exemplary damages does not arise. I find it does not arise in this case. I decline to award exemplary damages.
Conclusion
My findings are:
1. The plaintiff was exposed to asbestos cement products manufactured by the defendant. He was exposed to asbestos dust liberated from asbestos cement products during his employment by ATCO. From February 1963 until 1967 he was engaged himself in such work. From 1967 until 1968 he was a supervisor. From 1969 to October 1979 he was a manager. His exposure decreased in each of the three phases of his work but there was some exposure even in the managerial phase.
2. The defendant owed a duty of care to the plaintiff.
3. The duty of care extended to warning the plaintiff of health risks to which his use of asbestos products exposed him. That duty arose in the late 1960s.
4. The defendant breached its duty of care by not warning the plaintiff of the dangers of asbestos dust from the late 1960s. In that respect the defendant was negligent.
5. The defendant’s negligence caused the plaintiff to suffer dust diseases. He has suffered a right sided pleural effusion and pleural plaques. He underwent a pleurodesis operation which exacerbated pre-existing pleural thickening. As a result of the pleural effusion and the pleurodesis, and its sequelae, the plaintiff suffers breathlessness, right sided chest pain and a chronic adjustment disorder with anxiety and depressed mood. He has suffered a 10 to 15 per cent loss of lung function. There is a possibility that he will suffer a left sided pleural effusion.
6. The plaintiff has suffered, and will suffer pain and loss of amenity of life as a result of the defendant’s negligence.
I award damages as follows:
·
General damages - past $35,000
future $45,000
I will hear the parties as to interest
·Out of pocket expenses past and future
I will hear the parties as to quantum
·Griffith v Kerkemeyer
damages past $19,500
future $17,000
I will hear the parties as to interest
·Section 9(3), Sullivan v Gordon damages - No award
·Section 9(2), Exemplary damages - No award
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