Amaca Pty Limited (Under NSW Administered Winding Up) v Booth & Anor; Amaba Pty Limited (Under NSW Administered Winding Up) v Booth

[2011] HCATrans 277

[2011] HCATrans 277

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S219 of 2011

B e t w e e n -

AMACA PTY LIMITED (ACN 000 035 512) (UNDER NSW ADMINISTERED WINDING UP)

Appellant

and

JOHN WILLIAM BOOTH

First Respondent

AMABA PTY LIMITED (ACN 000 387 342) (UNDER NSW ADMINISTERED WINDING UP)

Second Respondent

Office of the Registry
  Sydney  No S220 of 2011

B e t w e e n -

AMABA PTY LIMITED (ACN 000 387 342) (UNDER NSW ADMINISTERED WINDING UP)

Appellant

and

JOHN WILLIAM BOOTH

First Respondent

AMACA PTY LIMITED (ACN 000 035 521) (UNDER NSW ADMINISTERED WINDING UP)

Second Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 OCTOBER 2011, AT 10.23 AM

(Continued from 4/10/11)

Copyright in the High Court of Australia

____________________

FRENCH CJ:   Mr Watson, just before we hear from you, I just have a question I would like to put to Mr Owens.

MR WATSON:   May it please the Court.

MR OWENS:   Yes, your Honour.

FRENCH CJ:   Mr Owens, yesterday – and this is no doubt a matter that Mr Watson will also address – but yesterday Mr Gleeson, in answer to questions from the Court, identified part of the complaint as a want of any differential aetiology attributable to the products of Amaca and those of Amaba.  In the Dust Diseases Tribunal the matter was not, as it appears to me, run on that basis.  Both defendants, in effect, conducted a single defence.  Is that right?

MR OWENS:   I think Mr Watson can deal with this in more detail but that is, to my understanding, incorrect and Mr Watson, I understand, will hand up written submissions that were handed up to the Dust Diseases Tribunal which demonstrate that the point in relation to the separate defendants was taken.  So I think ‑ ‑ ‑

FRENCH CJ:   But is that reflected anywhere in the decision of the Tribunal?

MR OWENS:   No.

FRENCH CJ:   Or in the decision of the Court of Appeal?

MR OWENS:   No.

FRENCH CJ:   Yes, all right, thank you.  Yes, Mr Watson.

MR WATSON:   Your Honours, I was going to say that there were three matters from yesterday that I needed to deal with and I was going to deal with that one first.  It came from a question from your Honour Justice Gummow about what happened on this issue below and whether a point was taken.  May I say that it was.  May I take your Honours back to the actual pleading because although a question was raised about it yesterday, it might be, if I could put it this way, worse than you think.  It is in appeal book volume 1, page 3. 

The way that the pleading was put was that in paragraph 2 two long periods of exposure to brake products was pleaded.  Then in 3 and 4, using a common phrase “all material times”, it seemed to be that the issue was blurred so that “at all material times”, that very long period, the plaintiff was being exposed to brakes from both sources.  That was wrong.  Then one can see in paragraph 6 the whole of the issue was rolled up effectively into one allegation.  The defence  ‑ ‑ ‑

FRENCH CJ:   Well, before you get to the defence, there was a joint reply filed, was there not?  It appears at page 81.

MR WATSON:   There is.

FRENCH CJ:   I looked at 91 where at 5.12 there is a reference to Amaca and Amaba intending to put “causation in issue and will raise a chrysotile only defence”.

MR WATSON:   Yes, and down a little further are still investigating the claim.  That document reflects a very particular procedure adopted in the Dust Diseases Tribunal called the claims resolution procedure, itself the subject of heavy legislation and regulation.  These are included in here but I do not understand that it is suggested that they governed the way in which the case was conducted. 

FRENCH CJ:   Both defendants identify themselves as category 1 defendants with no issue of apportionment as between them?

MR WATSON:   I think that was what was said in the matter and, may I say this, that would be true that if the case was established against either of the defendants, the judgment would be for the full sum against each.

GUMMOW J:   That seems to appear in 8.1 on 93, “Amaca and Amaba are category 1 defendants”?

MR WATSON:   Yes.

FRENCH CJ:   That attracts a particular presumption in terms of ‑ ‑ ‑

MR WATSON:   That too is only part of the claims resolution process, so that a claims manager can say that I apportion so much against you and so much against the others for the purposes of trying to resolve the matter or the mediation process.  Very few of these cases get to court.

FRENCH CJ:   The apportionment process for which the regulations provide, it seemed to me on initial reading that that stood outside the mediation process, that there is an apportionment as between co‑defendants which is, in other words, not to take up the time of the tribunal in determining the issue as between plaintiff and defendants.

MR WATSON:   Yes.  So the defendants, in a typical case where there might be quite a few, can have some sort of percentage allocated under a rough and ready procedure and then later on they can litigate it if they so wish.  Once the matter fails at mediation, then it goes to trial and the issues which have been identified, and the issues which were identified were reflected in the pleading and also in the defence, and the defence or the defence of Amaca is relevantly at page 102, at line 40.  Paragraph 2 of the defence draws the distinction.  A similar or, if you like, a mirror reflection of it appears at page 106 on behalf of Amaba.  Your Honours, what I wanted to do ‑ ‑ ‑

FRENCH CJ:   It was seen as no conflict between Amaca and Amaba because they had common representation?

MR WATSON:   That is true.  But the case was put separately and what I have done this morning is make available to your Honours’ associates a document, I think it is about four pages or so, which is a section of the written submissions which were provided to Judge Curtis and the Dust Diseases Tribunal on behalf of Amaca.  There were two sets of written submissions, one was put in on behalf of Amaca and the one on behalf of Amaba particularly adopted this methodology and then explained why the case would fail against it.  I apologise that the print is microscopic, but your Honours will see that on this document, it is three pages, there is a section G, “Specific Causation”.  We draw attention to paragraph 73 and then to 75 where the point is taken that the plaintiff presented the “case as though causation could be established”, and that was wrong, and then paragraph 76.  I am going to come back in a moment to Amaca v Ellis on that point because that will make it apparent to your Honours that this was a live issue before the trial judge.

FRENCH CJ:   What was the, as it were, corporate relationship, if any, between Amaca and Amaba?

MR WATSON:   Amaca was a company known as James Hardie and Company.  At some date in 1962 it entered into a joint venture with another organisation, quite a famous British Company, Ferodo, and separately they created a company called Hardie Ferodo Pty Limited.  James Hardie and Company Pty Limited was a shareholder in that.  May I say this, at the trial it was raised quite specifically that no pleading nor submission was put on the basis that because of some relationship of that kind between the two companies that Amaba should be ‑ ‑ ‑

FRENCH CJ:   Amaba is the latter company to which you refer, the joint venture company?

MR WATSON:   Yes.  Sorry, to put it a better way, that Amaca could be fixed with the activities of Amaba, that just was not put.  Your Honours, if I show the third page of the document, paragraphs 101 through to 108 conclude with causation unable to be established.  As I say, there was a kind of mirror submission made by Amaba.  Can I take your Honours to the portion of Amaca v Ellis to which reference was made.  That is Amaca v Ellis (2010) 240 CLR 111 and, in particular, I want to take your Honours to pages 128 to 130.

GUMMOW J:   Just before you do that, this paragraph 6 at page 3 looked to me like a classically embarrassing pleading.  What does the last sentence mean in terms of legal analysis, “The cause of the Plaintiff’s” injuries “was the negligence” of (a) and (b)?  How do you plead to that?  You did.  How did you plead to it?

MR WATSON:   We pleaded to it by – it probably was not the appeal we ‑ ‑ ‑

GUMMOW J:   I do not know what the New South Wales common law bar has come to.

MR WATSON:   I ran the case and I take responsibility, but the state of the pleading was as is shown at page 102 where there is even a reference to a submission being made.

GUMMOW J:   Wait a minute.  Paragraph 6, “Insofar as the allegations relate to it”.  They are the awkward words really.  It denies it was negligence.  What does it do in response to the last sentence of 6?

MR WATSON:   I think that must be rolled up in 5.3.

GUMMOW J:   All right.

MR WATSON:   As your Honours have seen, the primary judge was taken specifically to Amaca v Ellis and specifically to this part of Amaca v Ellis.

GUMMOW J:   It does not seem to deny causation, it having been particularly drawn out in 6.

MR WATSON:   Could I say this, if it did not on its face, that was the issue at trial.  The point made to the primary judge was that Amaca v Ellis, a decision of this Court which had been handed down literally while the trial was being conducted, dealt with this very issue.  As I say, I take your Honours to page 128 of the judgment.  There is the heading toward the foot, “Causation at trial” and paragraph 38 opens with a sentence upon which we relied.  Then after quoting the trial judge’s finding on the issue, your Honours said that that was the issue framed in the incorrect way.  I will not read it aloud.  Paragraph 39 is relevant to the factual considerations behind it but paragraph 40 is the key, but, may I say with respect, it reflects your Honour Justice Hayne’s third critical question posed yesterday in the second sentence treating the matter that way “It treated the relevant question as being” and we relied upon that.  That paragraph, paragraph 40, was cited to the judge.  The conclusion continues in 41 and 42. 

May I say also in respect of this that a similar point was taken on appeal and laid before the Court of Appeal.  I have been able to get a copy overnight of the written submission put into the Court of Appeal which referred again to Amaca v Ellis and, in particular, that paragraph 40.  Your Honours, we say that that matter of the separation, both as a proposition in the first place of fact, or according to the written submissions, but then ultimately as a question of law was raised and taken.  As Mr Owens has said this morning, there is no sign that his Honour the primary judge actually paid attention to that.  In the Court of Appeal it seemed to be lost in the idea that the primary judge had found the cumulative effect theory applied and, hence, the question, in a sense, became irrelevant.  That was the first of the three matters from yesterday. 

The second was a concession made by Mr Gleeson in response to a question by your Honour the Chief Justice, but what I wish to do is place a little distance between my client and Mr Gleeson’s concession.  Your Honours – I told him I would do this – in appeal book volume 3 at page 1107 there is an introductory part to the primary judgment at line 40 of the appeal book, “The Plaintiff’s Case”, and there is paragraph 22(1).  Your Honour the Chief Justice asked Mr Gleeson whether that was accepted and he said that it was.  May I just say this, that was not accepted at trial.  His Honour the primary judge seems to think so, but I have been through the papers and there is no such concession.  The point to be made is this, that it is very, very, very likely that it was, but one cannot say.  Yesterday, it was ‑ ‑ ‑

FRENCH CJ:   When you say “very, very, very likely”, do you mean on the balance of probabilities?

MR WATSON:   Yes.

FRENCH CJ:   Well, that is enough, is it not?

MR WATSON:   No, not really.  I will show your Honour in a moment, that the primary judge then relied upon this as though it was a concession which led to the inference.  It is very likely that it was caused by asbestos, but it cannot be known.  Yesterday, in response to a question from your Honour Justice Heydon, Mr Gleeson referred to some evidence.  I will not take your Honours back, but I will just cite it again.  It is one example of many examples in the appeal books that it is unknown as to whether or not mesothelioma occurs spontaneously.  There are strange references, for example, in the appeal books to it being found in fish, which are unlikely to inhale asbestos fibres.  I will just give your Honours the reference that was given yesterday.  It is in appeal book volume 2, page 546 between lines 28 to 32.  I will not take your Honours to it, but it was part of that evidence that Dr Leigh gave in the Western Australian case.

The reason why this might be of some importance is because in appeal book volume 3 at page 1142 – and now I am speaking at line 45 of the appeal book – the same point is made as one of the four steps toward what was described as the overwhelming inference.  Mr Gleeson dealt fully with paragraph 162 of the primary judgment yesterday.  That is the only reference I am going to make to it.  I will not go back.  I adopt what he had otherwise to say about the unavailability of an inference from those matters.  Your Honours, that is the second matter which came from yesterday. 

The third is that it was left to me to complete for your Honours an analysis of the medical evidence.  This appears in our submissions, or our analysis, and in the three-page outline that we provided to your Honours from paragraphs 19 to 21, but I will deal with it now, if I may, and say that we adopt Mr Gleeson’s submissions, which enables me to truncate ours so as only to focus on Dr Heiner and Professor Musk.  I will deal with Dr Heiner first, if I may.  His relevant report in the proceedings is at volume 2 and it lies between pages 624 and 631.  The reason why I say “relevant report” is because Dr Heiner did give some other reports, but they dealt with things such as qualification of medical expenses and the like, and this is the only report in which the issue of causation got a mention.  If your Honours go to page 630  ‑ ‑ ‑

FRENCH CJ:   There was a report of his attached to the original application, was there not?

MR WATSON:   There was, or the document which was part of ‑ ‑ ‑

FRENCH CJ:   Was that in evidence?

MR WATSON:   No.

FRENCH CJ:   No, I see.

MR WATSON:   But it was one of the reports which ultimately did get into evidence properly through the trial.

FRENCH CJ:   Yes, it got into evidence, but that did make an assertion as to a causal connection?

MR WATSON:   Yes, I think that is what I am about to show your Honour now.

FRENCH CJ:   Yes.

MR WATSON:   If your Honours see at line 25 in summary, “I will answer your questions”.  Unfortunately the questions did not get into evidence, but 6 and those words “related directly”.  So that is the only expression in report.  No reason given, no basis for it stated, but the assertion made.  May I draw to your Honours’ attention the omission of any separation between Amaca and Amaba or 30 per cent of all of the brake products which came from sources other than Amaca or Amaba. 

Now, could I take your Honours to volume 1 to see Dr Heiner’s oral evidence.  It starts at page 303, and I am going to submit that at the end parts of Dr Heiner’s oral evidence seem to be a refutation of a cumulative effect theory.  At page 303 there is evidence in‑chief taken by Mr Semmler and at line 24 of the appeal book there is a question which is very long, “And could I just ask”.  Now, the purpose of that was to modify the assumptions for Dr Heiner to the facts which have been proved in the case.  So if one goes down to line 40, one can see the actual question:

Now, just assuming that . . . have you any reason to alter the conclusion – 

And the doctor says, “That’s my opinion”, and at line 43 of the appeal book a new question, “And when” – really, this is typical of Mr Gleeson that he would overstate the case yesterday by suggesting that other question was the most leading question ever:

And when you used the expression “related directly to” are you envisaging – 

extremely leading question.  Your Honours will see that there was an objection, and before we pass further, can I just point out again a failure to differentiate between Amaca and Amaba and the 30 per cent of brakes from other sources.  Over the page the objection is noted and his Honour said, “I’ll hear the evidence”, and that at what would be line 15 of the appeal book, “I think it materially contributed.”  Then there were ‑ ‑ ‑

FRENCH CJ:   What does his Honour mean when he says, “I’ll hear the evidence”?  Is that an overruling of the objection or is it a deferral of it?

MR WATSON:   I believe it is a deferral. 

FRENCH CJ:   Was there a ruling subsequently?

MR WATSON:   Never.  That was one of our complaints to the Court of Appeal.  We are not, because of the limiting of grant, saying that he ‑ ‑ ‑

FRENCH CJ:   Yes, your confined grant, yes.

MR WATSON:   Page 305 of the appeal book, however, might be a refutation by Dr Heiner of the proposition.  At line 20, “do you consider that causation is best explained”.  Well, he could have said yes to that but he did not, and your Honours can see what he did say, and it referred to it in terms of risk.

Your Honours, may I just make something clear?  In no sense are we saying merely that you get the number of times that a doctor referred to risk as opposed to cause and you add them up and whichever got the most mentions wins, it is a question of substance, and one can see that when Dr Heiner is talking, perhaps in response to a leading question, but talking of a material contribution, he really when he gets his own say‑so refers preferably to risk.  Then there is a follow‑up question, “Yes, and in that sense”, I will not read it all except to point out that there was an objection, and your Honour the Chief Justice can see just a little – the judge said, “I’m not ruling on it,” and the answer is at about line 45 of the appeal book, or at line 40 the critical part is after a long preamble:

the likelihood of him developing . . . would increase –

Again, it is not an acceptance of something which might be called a cumulative effect theory.  If your Honours go to page 310, this is cross‑examination, right at the foot of the page - it is the very last question on the page:

Q.Is this what you were saying, that what is known about it is that inhaling asbestos can, at least in some circumstances, increase the risk –

The answer – I did not get the right answer –

Inhaling asbestos can – can certainly cause mesothelioma, yes.

Q.And inhaling asbestos increases the risk, depending upon dose, fibre type and latency periods.   A‑‑‑It does.

This is the key question –

Q.And that’s the best medical science can offer us in explanation –

that is, subject to the factors ‑ ‑ ‑

GUMMOW J:   What line are you reading from?

MR WATSON:   This is line 15 of the appeal book.  It is the question at line 5 of the transcript:

Q.And that’s the best medical science ‑ ‑ ‑

HEYDON J:   Do you have a page reference for Dr Heiner’s qualification?

MR WATSON:   I will have that found for your Honour and give that to you before I finish this section of the submissions.  He did have a great deal of experience in respiratory medicine, but there is no suggestion that he was a particular researcher in the field of mesothelioma, although he had treated cases of it and seen it from his early days even as a student.  That is Dr Heiner’s evidence.  Again, he fails to separate the two and it fails to explain anything which would support a cumulative effect theory.  Perhaps it says the opposite.  The next witness is a man of undoubted high qualification and experience in the area, Professor Musk.  Your Honours, I will take you to his report.  It is in volume 3.

FRENCH CJ:   He deferred to Dr Henderson to some extent, did he not?

MR WATSON:   No, he did not actually.

FRENCH CJ:   Did he not?

MR WATSON:   He declined to do so, but I am going to come to that, your Honour; it is a curious moment in the trial.  If your Honours are just finding volume 3, it is a very short report, it starts at page 937 and it is all over by page 939.  Justice Heydon, Dr Heiner’s qualifications are set out in a curriculum vitae which commences at page 633.  With Professor Musk, however, could I take your Honours to page 937 which is the start of his report and there you will see that he refers to receiving material.

Then he notes an exposure and then at 938, line 40 there are apparently answers to questions, again the questions are not in evidence, but the third is, “It is my opinion . . . brake linings” – and this time at least perhaps there is some distinction between Amaca and Amaba on one hand and the others – “was sufficient to make a material contribution”.

GUMMOW J:   They keep using this incantation “material contribution” without explaining what it means.  What does “material” mean?  What is their understanding off “material”?

MR WATSON:   May I say, with respect, we adopt that and the thing is that there were objections ‑ ‑ ‑

GUMMOW J:   All because it was said by Lord Reid in some case 50 years ago.

MR WATSON:   There were objections taken, as your Honour saw yesterday, to doctors giving a view which related to material contribution without explaining what that might mean to a doctor as opposed to what it might mean to a lawyer and material contribution might mean a much different thing to a doctor.  Your Honour used the expression “incantation”, that is the way that it is, constantly a kind of verbal formula, or incantation, was put to a witness and just looking for a ‑ ‑ ‑

GUMMOW J:   Well, it is not objected to, is it?  You are all complicit in this.

MR WATSON:   No, there was objection taken time after time to that point on which I lost on every occasion.  Page 939, at the top, and then there is a description by Professor Musk, a brief description, of his reasoning why one could say that this was a material contribution because it was “consistent with the known increasing risk”, et cetera, and there is references to risk.

GUMMOW J:   But having unsuccessfully objected to the use of this expression, there is never any cross‑examination of the witness as to what the witness means by it, is there?  That is what I mean by complicit and we are being left with this unsatisfactory record.

MR WATSON:   I hope that what I will show you next about Professor Musk will show that he revealed enough of what he understood he was answering, and that is in volume 1 and it starts at page 315.  At page 315, in evidence in‑chief, relevant to this issue, there is a question at line 40 of the appeal book, “And [do] you agree”.  Then there is an objection and then Mr Semmler ruled on it, and it was answered, “Yes, pretty well, yes.”  Your Honours saw yesterday, to roll it up in a fashion and say, “Do you agree with what Professor Henderson said?” is a fairly dynamic question.  It rolls up quite a lot within it.  Over the page it is taken up again.  I had almost succeeded in an objection, but around about line 25 of the appeal book it got in:

Q.Do you agree with the reasoning that Professor Henderson uses . . . A---Yes, I’ve been through it pretty well, yes.

Q.Do you consider that all exposure . . . materially contributes . . . 

I object.  No ruling.

Q.You can answer that please.  A---Yes –

We say that this really is the key to Professor Musk’s opinion.

Yes I do, all periods of exposure outside the – more than ten to 15 years ago would have contributed to his risk.

He is resisting answering it in terms of cause.

Q.I would like you to really draw your attention to the . . . tumour, rather than the risk.

Again, the material contribution question, and your Honour Justice Gummow, I am doing my best, I object.  Then the witness answers.  At page 318, however ‑ ‑ ‑

HEYDON J:   This is rather a serious matter, though.  Was the judge nodding or something?  Was he indicating by signs that Mr Semmler could demand answers?  It is supposed to be a distinct ruling when an objection is taken.  Either the question is withdrawn or the objection is withdrawn or the objection is upheld or overruled.  This does not seem to be happening.

MR WATSON:   All I can say is, I had done what I could, your Honour.

FRENCH CJ:   This dichotomy between risk and cause, risk is necessarily prospective and cause is after the event, is it not, when you are making a judgment?

MR WATSON:   Yes.

FRENCH CJ:   So when the doctor is talking about contributing to his risk, he is going back in time and looking forward to possible outcomes?

MR WATSON:   Yes.

FRENCH CJ:   You get risk plus an event, then the argument becomes, can you from the combination of risk plus event infer cause retrospectively?

MR WATSON:   Exactly.  I am sorry if I labour this.  The example which might be given is this.  A taxi driver is at an increased risk of having a motor accident when compared to the ordinary population.  If a taxi driver has a motor accident, it may not be because he or she was a taxi driver.  In fact, they might be a passenger in somebody else’s vehicle.  They might even be a passenger in a taxi.  So that one can look and say, yes, he was at increased risk and it happened, but one cannot then immediately leap and say, well, that proves cause.  It does not work.  The doctors ‑ ‑ ‑

CRENNAN J:   Are you suggesting that the particular risk does not come home?

MR WATSON:   That is exactly right, your Honour.

FRENCH CJ:   When the doctors speak of risk, it is not a matter of saying, well, they were not talking about causes, it just meant they were just speaking prospectively?

MR WATSON:   Well, they were speaking prospectively ‑ ‑ ‑

FRENCH CJ:   When they use that term.

MR WATSON:   Yes, but also the doctors, as can be seen especially from what I am about to take you to from a very eminent researcher, cannot talk about cause because it is not known and Professor Musk’s evidence on page 318 at line 35 of the appeal book, I asked him is it fair causation is not understood and he gave a very clear answer.  I pressed on and got another answer at the top of page 319, so that “molecular biological explanations . . . is not understood”, his statement here, that the evidence “that somehow asbestos” does do it “is not disputed”.  That is the epidemiology and observations in clinical practice, and at line 20, there is an answer:

We don’t understand the fundamental biology of the relationship or how it actually causes that at a molecular level –

and then there is some reference to fibre types or shapes.  At line 30 are the key questions:

do you think this is a fair way to express it, that given the biological processes remain incompletely understood, what the medical science establishes is that inhaling asbestos increases the risk of contracting mesothelioma.  A---Yeah, that’s certainly true and the relationship between the inhalation of asbestos and the development of mesothelioma is so consistent –

that is an epidemiological observation –

that it’s accepted as a causative relationship.

GUMMOW J:   What is wrong with that, lines 30 and 31 on page 319, the relationship is so consistent that it is accepted as causative as a matter of inference?

MR WATSON:   There is absolutely no doubt that in ‑ ‑ ‑

GUMMOW J:   That would happen in lots of realms of fact finding, would it not?

MR WATSON:   With respect, it falls short here because of this.  It is accepted that inhaling asbestos can cause mesothelioma.  That relationship, as Professor Musk has said, is a given.  The point is whether or not it was shown that the dust which came from, in my client’s case, Amaba’s products was causative.  Then, the professor went on.  He agreed that it was a proven risk and that most people are prepared to say it is causative.  I asked him, that is because they infer in cases where the evidence is there in respect of risk, this is inferring the causative relationship epidemiology: 

Yes, we hardly ever see mesothelioma in the general population –

Right at the foot of the page –

And you wouldn’t require any further exposure to asbestos to bring that process about.  A‑‑‑It may not –

but further exposure adds to a risk.  Now, your Honour the Chief Justice referred to this, may I say, with respect, incorrectly.  At page 321, because Professor Musk, a very eminent man, had spoken in terms of “we do not know” and its risk, the re‑examination became a kind of hyper cross‑examination at line 12:

would you agree that Professor Henderson and Dr Leigh . . . would be more likely to have a better understanding –

Objection.  At line 25:

Would you defer to their opinions . . .   A‑‑‑Not particularly.

Then he explains why.

FRENCH CJ:   What is the subject matter he is addressing because he has earlier generally agreed with what Professor Henderson has said, has he not?

MR WATSON:   At one stage he agreed with what Professor Henderson said but then explained it in terms of risk rather than cause, your Honour.  At line 35 you can see an answer to a question where Mr Semmler had said he did not want to be disparaging and the answer was:

I think any exposure to asbestos increases the risk -

It is again and again.  May I say, your Honours, again all of that evidence suffers from the obvious deficiency that it does not separate Amaca from Amaba and it does not separate Amaca and Amaba on one hand from all of the brakes on the other side.  It is focusing after the event upon a legal question.  Your Honours, that completes the third matter from yesterday and the analysis of the medical evidence. 

Could I now take your Honours to the argument that we wish to put.  This starts at paragraph 2 of our three‑page outline.  It is our primary contention that the primary judge in this case decided causation by reference to an increase in risk.  I need to take your Honours right to the point of the judgment, volume 3, page 1142.  On page 1142, appeal book line 30 there is a heading and it is larger than usual heading, “Conclusions on Causation”.  It is divided into two parts – “Generally” and if your Honours look onto the next page at about line 25, “Specifically”.

Mr Gleeson dealt with the “Generally” section yesterday.  I will not repeat it but merely adopt what he said.  Under the heading “Specifically”, at first in paragraphs 163 to 165, the primary judge looks at an issue which was important and was the subject of direct submissions, that is, during each period, Amaba’s and Amaca’s, there were other brake manufacturers and the plaintiff was using their products.  The trial judge resolves in paragraph 165 that during the Amaca period 70 per cent of the products came from Amaca and, over the top of the page, during the Amaba period 70 per cent of the products came from Amaba.  Now, that means, obviously, 30 per cent came from another source.  That is where his Honour carries out a mathematical calculation in paragraph 166.  Against us it must be said that his Honour introduces it with the words while:

I do not think the mathematics are necessarily compelling – 

I will show your Honours in a moment.  This is really at the heart of the decision.  The primary judge made a calculation.  At times it might be a little bit hard for your Honours to follow the maths because some of it is rooted back earlier in the judgment, I will take you there in a moment, but the conclusion is this in paragraph 166 for Mr Gleeson’s client that it was “10 per cent of the additional fibre burden” – I will come back to those words – “beyond background”, and I will also come back to those words because what the primary judge was doing was comparing only their, Amaca’s products with background and not with, for example, Amaba and all other brake manufacturers, and in 167 there is the same thing, 20 per cent, however, in the case of Amaba. 

Now, I said I would come back to the words “additional fibre burden” which were used by his Honour in both paragraphs 166 and 167.  They mean nothing more, nothing less than risk.  If you look at page 1136, it is an earlier part of the judgment and it is from this point that a lot of these numbers are derived.  There is the calculation from a table and then the maths start occurring at paragraph 134 and following, but it is paragraph 137 to which I wish to take your Honours, “The brake repair work increased”, and there is the word “risks, by a further” – there is the word “risks”.  And then his Honour said this, “Expressed in terms of cause” and that is when he used the word “fibre burden”.  Now, the leap from risk to cause there, while that might be something which a doctor may elide because he or she would regard it as unimportant in terms of their job, is the critical issue in respect of, with great respect, the primary judge’s job in this case, and there is no explanation.  It is simply a calculation of risk becomes able to be expressed in terms of cause. 

Now, your Honours, I do not want to labour this.  We just wish to say the following, that to decide a case by reference only to an increase in risk is itself a legal error.  May I just cite one case to support it, although there are many.  I will not take your Honours to it, I will just simply give the references because I know your Honours would be familiar with it, Roads & Traffic Authority v Royal (2008) 82 ALJR 870. There was a decision of plurality comprising your Honours Justice Gummow, Justice Hayne and Justice Heydon. We rely upon what is said at pages 876 to 877, if your Honours are looking at it, and especially paragraphs [23] to [25].

If your Honours do have that authority and care to glance at it, it would be better if I gave it the whole context.  I am sure your Honours recall it.  There was a collision between two motor cars and an injured driver sued the other driver but also joined the Roads and Traffic Authority suggesting that the intersection had been negligently designed.  The trial judge in that instance actually seems to have omitted consideration of the position of the authority.  It went to the Court of Appeal who found that the authority was guilty of negligence – well, actually, I am so sorry, I should not say that – who found that the authority should be held liable, and the whole point was and your Honours’ decision in the plurality was that the decision was not made. 

If you see at paragraph [23] there is a reference back to a submission that the Court of Appeal had made no finding about causation and what is recorded is that there was evidence that there was a statistical risk created by a poor design of an intersection and your Honours ruled that there was no evidence to support that it was a causative risk.  Your Honours may also in that context refer to the separate judgment concurring in the result by Justice Kiefel, the relevant part commencing at page 897 and being paragraphs [143] and [144] where, with respect, her Honour gives a very fine analysis of the historical position by reference to authority that a mere increase in risk is insufficient in this country to support a conclusion of causation. 

I do not want to distract your Honours from Royal, but there is one last point I will make about the Court of Appeal decision here but I do not want to deter your Honours from looking at Royal.  It is in the Court of Appeal decision at volume 3, page 1250.  In the Court of Appeal judgment, the judgment was addressed to particular grounds of appeal and on page 1250 at appeal book line 25 there is a reference to two grounds of appeal which is effectively that was the finding based upon biology or an assessment of risk, and Justice Basten records what he understood the submission to be and did not like it much, as he says at paragraph 118 on page 1251. 

The submission was said to be based upon a misconception that it was an issue for the trial judge, not for the Court of Appeal, and there is a reference to evidence.  Now, your Honours were taken to this yesterday and also during the application for special leave, and may I correct something.  Your Honour Justice Gummow asked me during the application for special leave whether that question and answer occurred in cross‑examination and I said I thought it did.  As I will show your Honours, it was actually a question from the judge himself, and your Honours will see that what Justice Basten has said in paragraph 118 is something which is rather telling, that the evidence:

provided a more than adequate basis for a conclusion that all –

that is a very powerful word, “all” –

inhalation of asbestos contributed to the injury.

May I respectfully submit, as we have shown your Honours the evidence, that was not made out on the medical evidence and in fact not said by any of those witnesses.  Then there is the question and answer and your Honours have seen that a lot of times, but would your Honours leave that open for a moment, bearing in mind that it is found that the submission was a misconception, but also open volume 1 of the appeal book where this question and answer appears.

Your Honours in volume 1, page 184, and your Honours have been shown this before but I wanted to put paragraph 118 into context.  It was said that it was a misconception that effectively Professor Henderson was speaking about cause not risk.  At 184, line 20, your Honours can see the question by the trial judge which is set out.  With great respect, given the next question and answer which is directed at the previous answer, it is unfair to look at one without the other.  May I just ask your Honours to correct this?  As was agreed in the trial Court, the word “grapevine” should read “brake linings”.

But I think what you are also saying –

This is in reference to the previous answer –

is this, that individually you cannot say whether any of these risks –

any of them, including the background –

you cannot say that any risk came home, you can only say it was an increment to the risk.  A‑‑‑That’s right.

With respect, if one returns to paragraph 118 of the Court of Appeal judgment and it is built into the answer that the proposition with which Professor Henderson agreed, ie, you can only say it was an increment of risk, one might take a different view of the utility of the submission.  Your Honours, that is what we wanted to say upon the first of our issues in respect of what we say was an error of law because the primary judge approached it the wrong way and the Court of Appeal did not correct it.

GUMMOW J:   What do you say about Justice Basten’s reasons at paragraph 119?

MR WATSON:   I adopt what Mr Gleeson had to say about it yesterday.  Your Honours, it is ‑ ‑ ‑

GUMMOW J:  

The concept of “risk” looks at the matter prospectively; if the risk materialises, a causal connection may be inferred.

MR WATSON:   That is a huge leap, with respect to his Honour, in that sentence, because it would take in the taxi driver example that I have given to your Honours.

GUMMOW J:   You say it stretches impermissibly the notion of what is involved in drawing an inference is a matter of law.  Is that the idea?

MR WATSON:   Yes, and may I say this.  It also, in substance, says this.   Contrary to the decision of this Court in RTA v Royal that one can decide a case on causation by reference only to risk because if there is a risk and that risk materialises cause is inferred and that is something against which this Court has spoken, not just in Roads and Traffic Authority v Royal, but many times.

GUMMOW J:   What do common lawyers mean when they talk about “inference”?

MR WATSON:   Well, good common lawyers would think back to Sir Owen Dixon in Jones v Dunkel, and that is a level of persuasion, I think the word was “comfortable” persuasion, that the primary facts could give rise to a reliable inference, et cetera.  Your Honour, it has to be ‑ ‑ ‑

GUMMOW J:   It is the category of indeterminate reference it seems to me.

MR WATSON:   It is, except for this, that properly applied it must mean that there are sufficient primary facts so that you would be comfortable with the result and it would also be one ‑ ‑ ‑

GUMMOW J:   What does “comfortable” mean?

HEYDON J:   It induces an actual belief in the state of affairs.

MR WATSON:   Exactly, your Honour.  Thank you for coming to my rescue at that moment, but ‑ ‑ ‑

CRENNAN J:   In this context what about the - I think I saw somewhere in the evidence of one of the medical witnesses that when what was being spoken of was the Peto model, so the cumulative theory, and one of them said something like, “Well, you talk about risks prospectively, but in a sense, when the illness is diagnosed you have 100 per cent of the risks coming home”.

MR WATSON:   Your Honour, that is exactly the way in which a doctor might approach the problem.  Yesterday, your Honour Justice Hayne posed the three questions.  At the first level there was the question for the doctor, and the doctor may say that.  At the second level there was the question for the public health official.  At the third there is the lawyer, and the lawyer would not answer the question that way.  What I am coming to next in our submissions is this, that ‑ ‑ ‑

GUMMOW J:   I think there is another problem, too.  The reason we are talking about is all understood in terms of jury trials, is it not?  The question is, what gets into the jury room and therefore there is not a great deal of refinement of analysis in the common law of these questions.

MR WATSON:   That is true.  The old cases were jury cases.

GUMMOW J:   There is a threshold that has to be crossed, which is fairly loosely expressed, and once it is crossed it is in the jury room and there it is.  Unless it is perverse, another check, that is the result.

MR WATSON:   Yes.

FRENCH CJ:   I think Justice Hayne put yesterday to Mr Gleeson, if you get a single source high dose exposure over a period of time can you not infer from that a causal connection?

MR WATSON:   May I say, of course, yes, with respect.

FRENCH CJ:   In a sense that is just high level – you are inferring from a high level anterior probability connected with the actual event a causal connection.

MR WATSON:   Yes, and may I just add to that?

FRENCH CJ:   Sorry, just finishing – and that then raises the question of where do you draw the line in terms of levels of probably that will justify by reference to the event, the subject of probability, a causal connection?

MR WATSON:   Yes, I respectfully adopt all of that and what is more ‑ ‑ ‑

HAYNE J:   As to that, we have the guidance, to the extent it is guidance, of Chief Justice Dixon in Jones v Dunkel 101 CLR 304 to 305, but the formulae are perhaps worthy of the description of indeterminate. There are two formulae there and I think:

In an action of negligence for death of personal injuries the plaintiff must fail unless he offers evidence supporting some positive inference implying negligence and it must be an inference which arises as an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a judicial mind.

One statement – and the other statement at 305:

The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.

Do we have any further or better guidance than those statements?

MR WATSON:   There is also a judgment by Justice Dixon in Briginshaw which is to similar effect.

HAYNE J:   Actual persuasion?

MR WATSON:   Yes.  In fact, from recollection I now think that that might be where I got the word “comfortable” from, but Mr Sheller just shows me something.  It is in Briginshaw v Briginshaw (1938) 60 CLR 336 and particularly at page 361. I am sorry, that has taken me a little away from my argument. I did not bring those authorities with me but I have a ‑ ‑ ‑

GUMMOW J:   Jones v Dunkel was a jury trial, was it not?

MR WATSON:   I have forgotten, your Honour.  I do know that it was a motor accident.

HAYNE J:   It was.

GUMMOW J:   It was, yes.  Briginshaw v Briginshaw was not?

MR WATSON:   No, it was a family law dispute and there was a serious allegation made against one of the parties to it.  So the case is famous for that reason but there is also an expression by Sir Owen Dixon as to the way in which inferences may be drawn at the page to which I refer.

HAYNE J:   I note the question in Jones v Dunkel is identified by Justice Kitto at the head of 308:

Whether that inference ought to be drawn was, of course, a question for the jury.  But they should not have been sent away to consider that question without proper guidance as to the relevance of the failure to put [the witness] into the witness‑box. 

Hence, the Jones v Dunkel inference issue.  If Justice Dixon draws a distinction between guesses, on the one hand, and inferences on the other, the content of that is in the hands of the advocate, one assumes.

MR WATSON:   It is very hard.  I think, also, that his Honour drew attention to the difference between conjecture and an inference, an available inference and ‑ ‑ ‑

HAYNE J:   You draw inferences, your opponent merely conjectures or guesses.  It is one of those irregular verbs, I think.

MR WATSON:   I am loath to distract your Honours from the great learning of Justice Dixon over time, but the next part of my submissions was actually going to address certain matters and also going specifically to address a concern, as I interpreted it yesterday, by your Honour the Chief Justice and your Honour Justice Hayne that the logical extension of our submission might be that all mesothelioma sufferers lose.  That is not so for the reasons just discussed with your Honour the Chief Justice, but it relates to the use/utility of the “but for” test. 

This case was presented to the primary judge directly on the basis of the “but for” test.  Your Honours, it was put the plaintiff could not pass it and that led to certain consequences.  There was cross‑examination of the experts directed at it.  There were submissions directed at it.  The trial judge never adverted to it.  It is almost as though it slipped his mind, with respect.  The Court of Appeal actually recognised the omission but, your Honours, after reading several times the Court of Appeal judgment on this matter, I am unable to tell your Honours what their Honours said about the utility, use or applicability of the “but for” test. 

May I show your Honours where that occurs?  It is in appeal book volume 3 at page 1242.  On that page, 1242 appeal book, line 40 there is reference to the ground of appeal relating to the “but for” test.  There is a long discussion of this by reference to the authorities – recent authorities including Amaca v Ellis and then if there is a resolution it seems to commence at page 1249 at paragraph 112 - I am so sorry, it really is paragraph 110 and following. Could I say this? Paragraph 110, with great respect to his Honour, just does not seem to be a correct statement of the law.

In fact, where there are separate tortfeasors contributing to an indivisible injury, the damages are awarded in solidum between them and the apportionment can only occur or only occurs in New South Wales under section 5 of the Law Reform Act permitting statutory contribution.  Then when there is a reference by his Honour to non‑tortious contributions, an allowance for damages might be made from Malec v Hutton, that is, with respect, not so in respect of causation.  That relates only to the assessment of damages.  So 110, with respect, is doubly wrong.

HAYNE J:   But does this section of his Honour’s reasons begin from the premise identified at paragraph 93, page 1242?  In the second line of paragraph 93 “if all exposure has a cumulative effect” and what is meant by that?  Accumulative effect on risk, accumulative effect as cause?  The two are, I suspect you would say, distinct.

MR WATSON:   Yes.  Well, it does seem to stem from that as a premise, a premise which we say is unsound.  But even so, at page 1249 at paragraph 112 his Honour said that considerable weight – and could I say, with respect, this part is not right – that reliance only upon some evidence by Dr Leigh.  There was reliance placed upon the evidence of several doctors but it is quoted over the page, paragraph 113, there are two questions and answers.  As I say, that is not the only evidence on this point but it is pretty explicit, “Dr Leigh, you can’t say that except for” and then there is the next question which is a kind of different issue.  At paragraph 114 – I am afraid that does not really address the question. 

Now, your Honours, may I say this.  Again, I do not want to take your Honours to these cases because your Honours know them so well, “the ‘but for’ test, applied as a negative criterion” remains an important test of causation.  That is the statement made by Chief Justice Mason in the case which some have suggested led to the demise of “but for”, March v Stramare (1991) 171 CLR 506. That was said by Chief Justice Mason right at the foot of page 515 and it continues over onto the top of the next page. Chief Justice Mason, of course, in that judgment enjoyed agreement from Justice Gaudron and Justice Toohey which explicitly creates a majority on that issue. It is an important negative criterion. In other words, if you cannot pass it, then you have got to do something else. Your Honours, with respect, March v Stramare is sometimes misunderstood as leading to the death of the “but for” test.  It was a case where it was exposed that merely passing the “but for” test is obviously insufficient.

GUMMOW J:   Saying it is necessary but not sufficient.

MR WATSON:   Exactly, your Honour.  It was identified as being the specific error of the Court of Appeal in Roads and Traffic Authority v Royal (2008) 82 ALJR 870 by Justice Kiefel at page 896, paragraph [135] and continuing to the end. It was recognised that that was the specific error of the Court of Appeal that Justice Santow, who wrote for the majority in that particular case, had moved - if your Honours look at paragraph [135] on page 896 – moved directly to considerations of causation without the application of the “but for” test. Paragraph [136] is the specific reference. The introduction comes from [135] and that goes right through to the end so that her Honour explains why the case against the Roads and Traffic Authority had to fail.

What we are saying is that in a case like this it was an essential component, an essential consideration for the primary judge to ask himself, “Did the plaintiff pass the ‘but for’ test or not?” and we say that by failing to even consider it then that can lead to error, and it did lead to error.  Mr Booth could not pass the “but for” test.  Your Honours saw a lot of evidence about that yesterday, but that does not mean that Mr Booth or, for that matter, other mesothelioma sufferers, all lose, and this is the point that I want to address, which in a way I have already addressed with your Honour the Chief Justice just some minutes ago.

If one fails the “but for” test and in particular in a case like this, it might be that then one has access to what I will call other evidence – it might be circumstantial evidence – which is admissible to permit an inference of causation to be drawn.  In many cases, other evidence is going to be the extent of the increase in risk.  In some cases, it will be of a different kind. 

I will just remind your Honours of that great old case of Adelaide Stevedoring v Forst where the poor man was working under a very heavy load and had to lie on his back supporting a jib of the crane, holding it just above his body.  When he got relief from his co-workers he stood up, took something that was estimated to be 12 steps before he crashed to the ground with a coronary thrombosis, and Acting Chief Justice Rich said the sequence of events was compelling. 

That is a classic example where there is other evidence, but you do not get that kind of evidence here because the latency period, for example, is 10 years to 75 years, according to the evidence.  So it is not available here.  There is only one other kind of other evidence here, and that is the extent of the increase in risk. 

As I have shown your Honours that was found by the trial judge – we say incorrectly, incidentally – to be 20 per cent in the case of my client and 10 per cent in the case of Mr Gleeson’s client, and a risk of that size cannot support an inference.  The authority for that is your Honours’ joint judgment in Amaca v Ellis (2010) 240 CLR 111.

While that authority is being made available to your Honours, could I just remind your Honours there that the claim was made through a gentleman who had passed away.  He had during his lifetime been a moderately heavy smoker.  He was also exposed to asbestos from time to time during two different employments.  The question became this.  Could the claimant prove that the lung cancer and death was brought about by reason of inhaling the asbestos, though there were other factors at stake.  For example, it was a given that asbestos by itself could cause lung cancer, but also that smoking by itself could cause lung cancer.  It was also a given that asbestos and tobacco can act together cumulatively, or synergistically it was said, and it was also recognised that there was a background risk.

The differential of those facts to here makes no difference.  Your Honours, we would respectfully submit that here, at the key point of talking about what other evidence was available, Amaca v Ellis is indistinguishable.  Could I take your Honours to page 126 of that decision.  In paragraph 25 there is a reference to calculations of relative risk.  May I just remind your Honours how that works.  The relative risk of a person not exposed to asbestos or not exposed to tobacco is 1.0.  If there is an increase in risk of 10 per cent, the relative risk would rise from RR equals 1.0 to RR equals 1.1, so that a 100 per cent is RR equals 2 and 1,000 per cent is RR equals 10.

The table there shows that the scientists were of slightly different minds in respect of the relative risks from smoking and asbestos and made calculations apportioning the role between four things – and this is paragraph 28 – smoking alone, asbestos alone, asbestos and smoking combined and background risk.  Now, I show your Honours that as background to how your Honours resolved this case on page 135, and when I say “resolved this case”, again this was a case where the claimant could not pass the “but for” test and had to go to other evidence, and the other evidence had to be an increase in risk.  At page 135, paragraph 64 your Honour said that:

Although the witnesses differed about the particular values –

they are the values incidentally on page 126 –

Although the witnesses differed about the particular values –

et cetera – I shall not read it aloud.  May I lay emphasis on a particular part of it.  About halfway down a new sentence commences:

If the relative risks and probabilities derived from epidemiological studies were to be treated as revealing what was a probable explanation . . . those analyses support two conclusions.

If I just pause there for a second, this is the other evidence and the comparable evidence here is the trial judge’s finding of a 10 per cent or 20 per cent increase, and the two conclusions are:

First, it is more probable than not that smoking was a cause –

Pausing there, on the trial judge’s finding it is in my client’s case 20 per cent increase in risk as opposed to 80 per cent from background.  In other words, the same result.  It is likely, much more likely, that it was background.  Secondly, the risks from asbestos were “low and not sufficient to found the inference”.  Now, I did show your Honours the risks from asbestos or asbestos combined were in that table on page 126 and they are either comparable to the result here or they are about the same.  They run from RR equals 1.1, that would be Mr Gleeson’s client, right up to RR equals 1.3, which is the two rope manufacturers here combined.  In other words, an increase in risk of that magnitude is insufficient to support an inference.

HEYDON J:   What corresponds in this case with the left‑hand side of the table in paragraph 25?  Would that be background, would it?

MR WATSON:   Well, it would be, on our submission, in my case, background plus Amaca’s brakes, plus all other brakes, plus the incidents as a boy as a child and then working on the wharves.  The figures, I might say, in the left‑hand column, if such a table was created here, would not be as high as they are there.  But your Honour Justice Heydon reminds me that I should point out to your Honours that this is a very good example, may I say with respect, where other evidence would be plenty strong enough to support an inference of causation if someone could come along and say that I had an RR equals 10 from the asbestos, if the claimant in this case had been able to do it.  That would be 1,000 per cent increase, and those sorts of numbers occur readily. 

One can picture the awful conditions, for example, at the Wittenoom Mine where the people were exposed to the very dangerous crocidolite.  So those numbers are capable and they prove the case through other evidence, but that is not this case.  May I say this without being too disparaging of it, but the reason why we are here is that, frankly, this is a weak case, not a strong case, and the inference cannot be supported.  We would respectfully submit that the same reasoning employed in Amaca v Ellis applies here. 

May I move onto our next point and, your Honours, it is an important point, not just in this case, but more broadly.  I will attempt to justify that statement in a moment, and that is, we wish to point to the case at both levels disclosing error of law by a misapplication of Bonnington Castings v Wardlaw. Your Honours may wish to have it with your Honours. It is [1956] AC 613. The very famous dictum of Lord Reid appears at page 621. While your Honours have that case available, I did wish to show you first of all how the trial court dealt with it and how the Court of Appeal dealt with it.

For the trial court this must have been one of the factors most important to his Honour’s conclusion and we say it is in error.  Could I just get your Honours concurrently to look at appeal book volume 3, page 1119.  The reason I want to show your Honours this is because the trial judge referred to this idea repeatedly.  In paragraph 59 the primary judge said – and may I say this, this formulation of issues was not put by either party or any party:

At issue between the parties in this case is the proposition that all exposure –

et cetera, but the words “trivial or de minimis” must come from Bonnington Castings.

I resolve that issue in favour of the plaintiff.

One of his reasons, this point is more important than just this case, is at the foot of that same page, paragraph 62:

Upon the facts in this case I specifically determine for the purpose of s25B –

I am not sure whether your Honours remember, but section 25B was a provision which was referred to your Honours in the recent case of Dasreef v Hawchar.  Section 25B says, in its first subsection that:

Issues of a general nature determined in proceedings before the Tribunal . . . may not be relitigated or reargued in other proceedings before the Tribunal without leave of the Tribunal.

That is so whether or not the proceedings are between the same parties.  So in other words, in paragraph 62 effectively Judge Curtis’ rule that not only here but until leave is granted, if ever, all exposures to chrysotile – that is the least dangerous asbestos of course – other than trivial or de minimus, a reference to Bonnington Castings no doubt, et cetera, paragraph 62 means that there will not be any causation issue, in effect, in any future case. 

Now, his Honour used Bonnington Castings as the pivot for his very decision on causation at page 1144.  If your Honours see there this is back in determining causation specifically.  Immediately after allocating increase in risk, paragraph 169, the famous part of Bonnington Castings, and then in paragraph 170, something which we just say discloses clear error:

The issue in Bonnington Castings –

and then the High Court – I am going to come to Amaca v Ellis on this –

The High Court in Amaca Pty Ltd v Ellis [2010] HCA 5 (3 March 2010), held that this passage was not apt for application to a circumstance where a dispute exists as to whether the substance is causally implicated –

Could I say, with respect, that sounds a lot like this case.  We are saying that Amaba’s products were not causally implicated.  Now, your Honours, I am going to submit in a moment that your Honours resolved this very clearly in Amaca v Ellis, but may I make my submission clear.  Bonnington Castings has nothing to do with these kinds of circumstances and does not apply in this kind of case.  I remind your Honours of the facts. 

The man suffered from pneumoconiosis which is a disease in the lungs by coincidence brought about by dust on the lungs and it is directly attributable to the accumulation of dust on the lungs.  So that the condition is made worse every day the person is exposed to more dust.  The kind of injury which was there is one which the law recognised as being progressive, cumulative and divisible, and that word “divisible” is important because the injury here is not. 

Now, I will just remind your Honours the facts that dust came from two sources within the one factory premises, pneumatic hammers, but that was not a negligent source of dust, and otherwise from swing grinders, which in the way it produced the dust was held to be negligent.  So there was one condition and two potential sources of dust.  Lord Reid’s famous dictum means, we would respectfully submit, that where you have a divisible injury that you can use those means to find out whether there was a sufficiently serious, separate injury caused by the swing grinders. 

In other words, in tort it has always been recognised that if an injury is merely de minimus, somebody brushes against you in the street, it is not compensable.  It has to be something more than that, and that is what Lord Reid was referring to.  It is true in the result in Bonnington Castings that the employer was found liable for all of the damages, but that is easily explained. 

No point was taken by the employer but the damage should be apportioned and if the point had been taken, damages would have had to have been apportioned because their injury was divisible.  Your Honours, may I say this.  That is exactly how, we would submit, Bonnington Castings has been explained here and in the United Kingdom.  I take your Honours back to Amaca v Ellis.

GUMMOW J:   Just before you do that, what you have been saying may be made clear by the argument in Bonnington at 617 about point 5, the argument for the successful party:

The cause of the injury was not the emanation of the dust but its inhalation.  The atmosphere was a guilty atmosphere and the appellants do not absolve themselves from responsibility by saying that the greater part of the dust was contributed by an innocent source, the hammer.  The inhalation, the cause of the injury, is not to be confused with the causa sine qua non.  Of the dust inhaled the amount contributed by the swing grinders was not negligible or inconsiderable.

MR WATSON:   That is exactly the issue.

GUMMOW J:   That was the issue.

MR WATSON:   We say that is what was resolved and we say that is what this Court said was resolved when I take your Honours to Amaca v Ellis.  I do not want to drag your Honours away from Bonnington Castings, but in Amaca v Ellis ‑ ‑ ‑

GUMMOW J:   And that phrase “not negligible or inconsiderable” is reflected, I think, in Lord Reid’s treatment of material contribution.

MR WATSON:   It could be.  Your Honours, in Amaca v Ellis (2010) 240 CLR 111 I wish to take your Honours to page 136.

GUMMOW J:   It was not a case of any possible attribution of liability in Bonnington.  There is only one possibility because the other source was innocent.

MR WATSON:   Yes.  At page 136 of Amaca v Ellis, just above paragraph 66 there is a little heading “The relevance of material contribution” and what had happened in Amaca v Ellis was that the majority in the Court of Appeal of Western Australian had relied upon Bonnington Castings in more or less an identical way to the primary judge in these proceedings.  In 67 we would respectfully submit that this Court has said that the issues in Bonnington Castings were of a particular kind, are they critical to understanding the dictum and in paragraph 68, these words:

This description of the issue of causation in Bonnington Castings shows how different it is from the issue of causation in this case.  The issue in Bonnington Castings was whether one source of an injurious substance contributed to a gradual accumulation of dust that resulted in the disease. 

Now, may I say with great respect to the primary judge, he was taken to this very portion of that judgment.  So your Honours might remember, when I showed it to your Honours, his Honour the primary judge interpreted it to mean that Bonnington Castings does not apply where there is a dispute about the involvement of the causal agent.  With respect, that is not what your Honours said.  I do not particularly wish to take your Honours to this, I am not hiding from it, but an explanation similar to that which I have offered for Bonnington Castings is the received wisdom in the United Kingdom.  May I cite Sienkiewicz v Greif [2011] 2 WLR 523, first by Lord Phillips at paragraph 17. If I show your Honours there, you see the odd reference to Bonnington Castings:

That disease is divisible.  The severity of the disease depends upon the quantity of silica inhaled.  The defendant did not, however, argue –

apportionment –

CRENNAN J:   In 15, it had been noted that “Mesothelioma is an indivisible disease” is the context in which you are speaking.

MR WATSON:   Exactly, your Honour, and then there is a discussion of the “but for” test.  We would rely upon that.  In fact, as has been explained in Sienkiewicz and originally in Fairchild, it was actually the relaxation or removal of the “but for” test which is the Fairchild exception, but I have already dealt with “but for” in conventional Australian terms, but there is also reference in Lord Brown at paragraph 176. That is at page 579. A similar explanation, your Honours, is given for Bonnington Castings by Lord Bingham in Fairchild v Glenhaven [2003] 1 AC 32 at pages 46 and 47, being paragraph 14.

HEYDON J:   Both Lord Phillips and Lord Brown, although they are too polite to say this, argue that, in a sense, or seem to say that Bonnington Castings is not really a completely satisfactory authority because there was a deficit in the argument.  There was no argument that there should be an apportionment of damages between innocent and culpable dust and I think Lord Phillips said that a number of intermediate appellate decisions in which the point had been taken are to that extent inconsistent with Bonnington.  Do you have any submission in relation to that?

MR WATSON:   That is the submission we would make.  I am going to come to a kind of conclusion on what we say about Bonnington Castings but that is part of it.  Lord Phillips referred to a quite famous case which was decided by Lord Mustill as a trial judge called Thompson v Smiths Shiprepairers.  It was a hearing loss case and what happened was that, like the pneumoconiosis, the condition is brought about gradually and so sitting as a trial judge Lord Mustill carried out the apportionment.  It is a deficit in the case.  What is worse, if I can foreshadow the conclusion, is that Bonnington Castings has been picked up – well, it was picked up in Amaca v Ellis and in this case, incorrectly, as a kind of alternative to the material contribution test which is fairly well rooted in our law.

That which is a material contribution for the purposes of determining causation is one thing, but it should not be undermined by the suggestion, coming as we say from a foreign source, different consideration of Bonnington Castings, to mean that that which is material is anything above de minimis.  There may be a huge gap between the two.  Because of that kind of false reasoning – and I did demonstrate to your Honours, I hope successfully, that it was pivotal to his Honour the trial judge here that as soon as he said that there was a small increase in risk, 10 per cent in one instance, then that was able to be converted into a material contribution, and increase in risk which is not able to be dismissed as de minimis becomes a material contribution.

This kind of reasoning has been applied in all sorts of cases, or at least I can tell your Honours from personal experience, that it has been suggested as being an authority able to be used in this context in professional negligence cases, for example, and that would come about partly because the Court of Appeal in this case proved what the trial judge had to say.  Could I take your Honours to volume 3.

GUMMOW J:   Just before you leave Fairchild, probably the most detailed analysis of Bonnington is by Lord Rodger, is it not, at paragraph 127?  The important point he makes at paragraph 128:

there was nothing new in the idea that the [plaintiff] required to prove no more than that the defender’s wrongful act had materially contributed to his injury . . . ample authority for the proposition in both English and Scots law.

Then we get Lord Campbell, Lord Watson and paragraph 129.  Now, you say you can live with all of that?

MR WATSON:   Yes.  Well, we do.  In short, we would respectfully submit that the difference is that for the purposes of saying that one was liable for a separately compensable contribution to an overall cumulative injury, it is quite a different idea to the one that we have here where mesothelioma is indivisible.  I was going to take your Honours to the Court of Appeal, but I did try to say that this part of the decision is a little bit bigger than this case itself.  The Court of Appeal actually approved the trial judge’s reasoning at page 1248 and, as matters presently stand, it would seem to be the case that that kind of, we say, illicit reasoning is permissible to found causation in a difficult case.  It is paragraph 107.

FRENCH CJ:   The logic of which you complain or the course of reasoning of which you complain is not simply increased risk equals material contribution.  It is increased risk plus event leads to an inference of material contribution from that which increased the risk.

MR WATSON:   Yes.

GUMMOW J:   So we are back in the world of sufficiency to found inference, are we not?

MR WATSON:   We always come back to that, your Honour.  I have two further ‑ ‑ ‑

HAYNE J:   The relevant inference to be drawn must be identified with some care.  There are at least two, possibly three or four steps to it.  One, is it more probable than not that mesothelioma suffered by the plaintiff was caused by inhalation of asbestos?  That is one question for inference.  Next question is, can a choice be made inferentially between competing hypotheses, namely, that asbestos inhalation (a) from the background, (b) from the house renovation or (c) from working on brakes was a cause of the plaintiff’s injury, and it is that last choice, 2(c), which may then yield various choices, perhaps differently expressed but they include if it was inhalation from dust generated from working on brakes, was it the brakes of (a) and (b), was it the brakes of (a) or (b) or was it, as you would say, another inference open, the brakes of (c) through ZZZ, being the other suppliers of brakes.  Now, those are some questions, perhaps not all of them, that would have to be resolved by a process of inference.

MR WATSON:   Well, we would respectfully adopt that analysis, your Honour.  Your Honours, I offer two further complaints to make about the judgments below, and I hope I will be finished within 15 to 20 minutes.  The next complaint is in respect of what we have called mathematical errors.  This is at paragraph 11 of our outline and following. 

May I ask your Honours to just pick up volume 3 of the book which has all of the relevant entries in it.  As your Honours have seen at page 1144 – I am sorry, I know we have been there a lot but it is rather important – at paragraph 166, or in my client’s case 167, there were the calculations.  Well, your Honours, we would just say that simply speaking they were wrong.

HEYDON J:   Were these calculations put to the judge by the plaintiff?

MR WATSON:   No.  In fact, because I needed to get that document which I handed up this morning, I got access to the black book and it had a transcript of the oral argument which was very brief and these calculations were expressed by his Honour because I think he wanted to avail the parties of an opportunity to address them, but they were mentioned by him on that occasion.  They had not been submitted by anybody. 

But they are wrong.  Part of the problem with complex mathematical calculations when written submissions were provided, and oral submissions ran for probably less than an hour, was that one could not see how they were wrong but they are.  One can see the error emerges from this.  At page 1136 of the same book there is paragraph 136 and it says that “Professor Berry” – he is a very eminent man in this area:

says that it may be appropriate to assume . . . a lifetime risk of 70 per million.

So that is the background.  Well, that is just wrong.  Professor Berry’s report is in that same volume starting at page 903.  He did not say that at all.  At 903 is the start of his report, but at 906 at about line 25 of the appeal book there is a section “Background mesotheliomas” and paragraph 5.3 of his report, I can cut to the chase, because the last three lines – that this is what Professor Berry said:

From the evidence available it seems reasonable to conclude that the background lifetime risk is between 70 and 140 per million.

Your Honours, may I say this, I appreciate that it has been put against this submission in writing by Mr Jackson that there are other places where other experts came up with other assessments, and that is true.  Professor Henderson might have said it was 70, Dr Leigh said it was 133, somebody else said it was 330, but the trial judge said, “I am relying upon Professor Berry.”  Professor Berry did not say what the trial judge said.  This might be something robustly common lawish, but we would respectfully submit that given the plaintiff bears the onus, if one was to apply that range of 70 to 140, given the onus, 140 should have been the end applied, certainly not the lowest figure.  If I say to your Honours this, as soon as we do that, those figures of 10 per cent that becomes 5 per cent and the figure of 20 per cent becomes 10 per cent, and that is not the only error. 

I want to take your Honours back to page 1144.  In paragraph 166 and paragraph 167 the primary judge only compared Amaca’s products against background and Amaba’s products against background.  That is, with respect, wrong and, moreover, there were specific submissions addressed to his Honour on this.  It had to be compared with everything else, not just background.  So in Amaba’s case, on the other side of the ledger to its increase in risk would be the background plus the childhood exposure, plus the brakes from Amaca, plus the brakes from other sources.  In other words, it is a little bit less again.  We have suggested that the figures were more properly in the rage of 8 per cent for Amaba and 4 per cent for Amaca and we would respectfully suggest that 4 per cent is coming awfully close to the moment that one may say trivial or de minimus.  Again, the Court of Appeal, even though they seem to have recognised that there was a potential problem with the maths, refused to correct, and could I just show your Honours why.

FRENCH CJ:   Sorry, where did he actually use the outcome?  You pointed to the qualification, did not think the math is necessarily compelling.  How did his Honour use that after arriving at those figures?

MR WATSON:   In these paragraphs themselves which, after reference to Bonnington Castings permitting the inference to be drawn where there was anything more than de minimus, the conclusion at 172, and his Honour really did not really refer to anything else in between.  This is under the heading “Specific Causation”.  We would say it is irresistible that what his Honour was doing was inferring a little increase in risk based upon Bonnington Castings can be called a material contribution.  It also appears at pages 136 and 137.

HEYDON J:   Pages?

FRENCH CJ:   Paragraphs, is it not?

MR WATSON:   Pages 1136 and page 1137 where his Honour had the original go at the maths at paragraph 134 and following where there is references to risk and at paragraph 138, and this was before taking off the non‑Amaca, non‑Amaba, without dividing between the two, “I regard such a contribution as material.”  Paragraph 139 is regrettable because Professor Berry never said that, but even so.

HEYDON J:   That is back to page 906, 70 and 140 not 170.

MR WATSON:   Yes.

HAYNE J:   But that is the derivation of the 44 per cent that we see in paragraphs 166 and 167.

MR WATSON:   Exactly.  What did the Court of Appeal say about this?  It is at page 1255.  I suppose, in reality, it is right at the bottom of ‑ ‑ ‑

FRENCH CJ:   He seemed to be talking about risk at 136, lifetime risk, that is the figure.  I may be misunderstanding all of this, then at 166 he is talking about exposure to product or fibre load.

MR WATSON:   I need to go back ‑ ‑ ‑

FRENCH CJ:   We are not talking oranges and apples here, we are talking ‑ ‑ ‑

MR WATSON:   Sorry, can we go back – I did deal with this a little earlier.  At page 1136 there is paragraph 137.  Paragraph 137 refers to “70 per million lifetime risks” by other risks and then this enigmatic sentence or phrase.

FRENCH CJ:   So that the 70 per million is the background risk?

MR WATSON:   Yes, the incorrect background risk.

FRENCH CJ:   The low register background risk?

MR WATSON:   Well, that is what his Honour just says in the next line, in the next phrase, “Expressed in terms of cause”, and as I suggested before, that is a little enigmatic how his Honour moved from what was plainly a statistical reference to risk and just labelling it as a cause without explaining why or how.

FRENCH CJ:   He seems to have equated conceptually fibre burden and background risk as though the figures could be translated from one to the other.

MR WATSON:   Exactly, and I complain about that.  I complain about this as well.  I have a lot of complaints.  At page 1254, right at the foot of the page, paragraph 132, the very last line on the page:

the calculation was the complaint that his Honour’s analysis was “erroneous” because it only compared Amaca or Amaba’s contribution with the background risk and not with the entire risk –

May I say, the argument had also been put that it was an incorrect selection of background risk, but that is not recorded.  Then it seems as though maybe, I am not sure, that the Court of Appeal accepted that that could be a mistake, but the last sentence:

If this exercise involved some arithmetical error, it was an error of fact, not law.

HEYDON J:   It is not an arithmetical error.

MR WATSON:   The example that came to my mind was that if the decision of the trial judge was to determine whether or not a quorum was present and said one plus three, that means that there were seven people there, that is not an arithmetical error.  It is a mixed question of fact and law, but it not unassailable on an appeal limited to a correction of a question of law.  It was obviously decisive in his Honour’s mind.  Your Honours will be please to know, my last issue, this is paragraphs 14 and 15 of our outline and it is just about the epidemiology. 

Your Honours, I just want to put it this way, that we have said, hopefully it does not sound too disparaging to say it, but this was a weak case.  This is not like a case with somebody who worked at James Hardie or at Wittenoom, or something like that.  It was working in very unusual circumstances.  Brake mechanics, auto mechanics and the like have been followed around the world to see whether they are at risks, and 22 studies have been published around the world, 19 of those – there is evidence for everything I say, and we have put it in writing, but if I may shortcut to this – 19 of them are primary studies, three are measure analyses which collect the available primary studies and compile them and analysis it in more detail. 

Can I show your Honours appeal book volume 1 at page 185, right at the foot of the page, and this is after I have cross‑examined or asked Professor Henderson something about these studies published all around the world, different places around the world, at the foot of the page:

Q.Professor, no epidemiological study has ever shown that motor mechanics are at an increased risk of mesothelioma from brake work, is that right?  A---That’s correct.

That seems to be a fundamental starting point which would be strong for us.  In the same volume, could I take your Honours forward to page 361.  This is evidence of Professor Berry.  It was called in‑chief pursuant to a grant of leave because the other side had extended their evidence in‑chief, and at line 20 and following I asked Professor Berry about the nature of meta analysis.  He actually wrote the book on it and some of the epidemiologists in this case were using his book as their guide.  At line 24, is it valid, is it valuable, is it internationally respected, and then at line 35 of the appeal book:

Q.Did you look at a meta analysis which was conducted by Otto Wong.

Then I asked him at line 40 and following, after identifying the paper, have you read it, was it competent, were the techniques sound, were the maths accurate.  In fact he redid it.  Then over the page just above line 30 there is a question:

Q.In the meta analysis by Wong have you calculated the percentage chance that the power of that meta analysis could reveal of a doubling of risk.

Doubling of risk is perhaps a touchstone for the probability test but it may not be the perfect one but, yes, it is a 90 per cent prospect of discovering it.  Then when I asked a further question, it was conceded by Mr Semmler that the question did not need to be asked because that was obvious evidence that it was powerful.  So what we have now so far is no study has ever shown motor mechanics have an increased risk.  In particular, the meta analysis of Wong is a good one.  Could I show your Honours page 399.  This is the actual paper by Wong.  There is an abstract in the left‑hand column and I am going to show your Honours that abstract from line 30:

The relative risks reported in the six studies ranged from . . . Based on a meta‑analysis –

Competent, sound, accurate, meta analysis incidentally – 

the mesothelioma relative risk for auto mechanics is 0.90 –

Now, I will just pause there at that.  What that means is that if an ordinary person in the community is RR equals 1.0, this is RR equals 0.9.  Professor Berry said that is an artefact of the studies.  It would not be less than 1.0, but he would not argue that they were at a lower risk for some reason.  But then it goes on to explain something, and I just pause, if I may.  There is evidence to support everything I am about to say incidentally, your Honours.  There is a reference to a “95% confidence interval”.  The way that the statisticians do this is by saying that the result is 0.9 but to a degree of 95 per cent confidence we can say that it is no lower than 0.66 and no higher than 1.23. 

Now, 95 per cent confidence is, as I understand it, close to what a scientist might describe as certain.  Those figures become important.  May I ask your Honours just to bear in mind that range going up to 1.23.  Wong goes on to conclude:

An application of Hill’s – 

Hill is Sir Austin Bradford Hill, the famous epidemiologist – 

causation criteria to epidemiologic data . . . clearly demonstrates that auto mechanics do not have an increased risk of malignant mesothelioma –

May I say this at this point, your Honours.  At this point the evidence is looking good for us, but I will show you now what the trial judge did with it, and that is in volume 3 of page 1120.  On volume 3, page 1120 at line 40 of the appeal book there is a new section of the judgment titled “Epidemiological Evidence” and there is some description about some of the issues.  At paragraph 71 on page 1121 there is a reference to Wong and the finding which I have just shown your Honours.  Then at page 1123 this is how the primary judge used Wong.  In paragraph 78:

At a relative risk of 1.2, for every 10 persons . . . an additional 2 will contract the disease . . . The statement by Wong . . . is correct but misleading.

That is strong language to use in terms of an apparently competent sound, mathematically accurate paper, but his Honour the trial judge said it was misleading and the reason is revealed by paragraph 79.  That reference to 1.23 is a reference to the highest figure on the confidence interval.  In other words, what his Honour is doing is taking the study and looking at it in terms of what can produce the highest result.  Now I do not, with respect, need to dwell to explain to your Honours that that is bad maths and bad science, but if your Honours turn over to page 1124 in paragraph 82, your Honours will see the conclusion.  It is expressed in a strange way, but

may I say this.  It seems also to be an inversion of the onus.  Those are the submissions, your Honours, on behalf of Amaba Pty Limited.

FRENCH CJ:   Thank you, Mr Watson.  Mr Jackson.

MR JACKSON:   Your Honours, may I commence by saying two things.  The first concerns the allocations of responsibility as between Amaca and Amaba.  Your Honours will not find much discussion of this in the proceedings at first instance except in the bit of the written submissions at first instance that our learned friend handed up this morning and also in the reasons for judgment.  One reason may well be that the two parties were represented at the trial by the same senior counsel, and you will see that at page 1102 of volume 3.  Another is as appears, your Honours, from volume 3, one of them was a subsidiary of the other, and that is in page 1275, paragraph 199, that the representation is a factor, of course, because part of the argument inevitably, one would have thought, was that if there were to be some establishment of responsibility as between the two that part of the argument would or may well involve saying on the one hand, not me and on the other hand, you, but when the same body is holding up the two hands, there are some practical difficulties in doing that.

Your Honours were taken to the various parts of the cross‑examination of the witnesses who were called on behalf of the plaintiff and, your Honours, it is very difficult to see, even on the most benign view of the cross‑examination of those witnesses, that there is any attempt to get any of them to distinguish between the position of, on the one hand, Amaca, on the other hand, Amaba, but it is clear, in our submission, that there were relevantly two exposures, one by each of the appellants.  Their products may have been manufactured from the same material, perhaps at the same place.  They might even have looked the same, leaving aside questions and warnings, but because they were sold by different companies, there were separate exposures ultimately to be considered because they occurred at different times. 

Your Honours, the judge was cognisant of the fact that there were separate exposures, not just at around paragraph 168 in volume 3 at page 1144 where he said at paragraph 168, he referred to the causal contributions, et cetera, but also your Honours will see, if one goes to paragraph 173 and following at page 1145, that in dealing with the discussion of foreseeability, he distinguishes between the position of each of the two companies, and you can see that he starts against Amaca immediately above paragraph 173 and the position so far as Amaba is concerned immediately above paragraph 187 on page 1150.

Your Honours, the nature of the case was one where there were, relevantly for immediate purposes, two separated, in a sense, periods of exposure, 1953 to 1962 and then 1962 and thereafter.  When one is applying the evidence of, for example, Professor Henderson and Dr Leigh as to each exposure contributing the work with the brake linings does involve two separate exposures to each of which their cumulative theory applied and if, as was in fact held, each exposure made a material contribution, each was liable for, to put it directly, the lot.  Your Honours, if two vehicles collide and the passenger is injured and both drivers are negligent, the fact that as between the drivers one is 90 per cent to blame and the other 10 per cent, it does not mean that both are not liable in full to the injured passenger.  I am leaving aside, your Honours, any statutory provision for a different result.  The allocation of responsibility between the drivers in contribution proceedings may be a different matter from the position as against a plaintiff.  Your Honours, that is the first general aspect I wanted to make. 

The second concerns a more particular thing.  The Court was taken yesterday – this concerns some of the evidence of Dr Leigh – with some enthusiasm to some evidence which Dr Leigh had given in the Hannell and Moss cases in Western Australia.  Could I just say first that that evidence was tendered in this case not by us, but by the appellants and it included what your Honours will see in volume 2 at pages 537 and 538, the sperm/ovum example which is at the bottom, I think, of page 537 and it goes over to the top of 538.  What the Court was not taken to yesterday was that some further evidence was given about that in this case and given about it by Dr Leigh in volume 1 at page 353 where he said that was not a good analogy.  His choice of words had not been entirely ‑ ‑ ‑

CRENNAN J:   What is the page number, sorry?

MR JACKSON:   Page 353, your Honour, volume 1.

CRENNAN J:   Thank you.

MR JACKSON:   His choice of words had not been apposite, perhaps.  Your Honours will see at page 353 in his re‑examination, if one commences about line 22, he was referred to the fact that he had been taken to some passages from his evidence in the Hannell and Moss litigation, and in particular the analogy to which I adverted, and he said – and your Honour, this is about lines 26 or 27 – and this is in answer to whether it is a helpful way of describing the process, he said:

Well in retrospect – well it gives an idea of the probabilistic nature of fibre cell interaction.  It could lead someone to conclude that once one ovum has been fertilised by one sperm then that’s the end of the matter and all the others were irrelevant.  In that sense it’s probably not a good analogy for what goes on when you’ve got millions of fibres exposed to millions of cells in the lung.

He said, the next answer:

Well, they’ve all got a chance of doing something.

Then the next answer:

But once one’s done something that doesn’t stop the others doing further things.

He was asked:

And the same applies, I take it, to the soldier analogy which you used, it runs the risk that on a superficial, or on one reading of it, it might imply that – or the reader might get the impression that –  A‑‑‑It’s a bit different, because, you know, German trench machine guns firing on fixed lines in the First World War would hit more than one person, you know.

Your Honours will see the remainder of that exchange.  The point I am seeking to make about it, your Honours, is that one sees that one is talking about a continuing operation to which I will come in a moment.  Your Honours, this is a case where the first respondent was diagnosed with mesothelioma in 2008.  There was a very substantial body of medical evidence – and again may I come to the detail a little later – to the effect that if a person develops mesothelioma, the mesothelioma is caused by the inhalation of asbestos and, secondly, that the biological process is one where the ultimate development of the mesothelioma is brought about by the cumulative effect of the exposures to asbestos in a period up to 10 to whatever it may be years before the diagnosis.

Your Honours, to put it another way, mesothelioma is not brought about by the inhalation of one fibre or of asbestos or by some other such theory on the evidence.  The primary judge, in our submission, was perfectly entitled to accept the medical evidence to the effect to which I adverted a moment ago.  First of all, there was nothing odd about it.  It was agreed upon, in our submission, by each of the four medical witnesses with particular emphasis given by two witnesses whose evidence is evidence the judge specifically accepted – this is Henderson and Leigh – no medical evidence was called to the contrary.

Your Honours, the observation that was made by the primary judge about the earlier case, Platt, was that 10 years had gone by, the evidence is the same, surely with the resources of frequent litigants in the area like the two appellants, if there was anything in the theory to the contrary, they would have witnesses.  The witnesses maybe had given evidence in an English case or somewhere else.  They would have witnesses who would say this theory is medically wrong, we do not agree with it.  The judge was not – I am sorry, your Honour, I thought your Honour was going to say something to me.  Your Honour, I am grateful for that.

Your Honours, may I say, but surely one would expect litigants experienced in the field, heavily represented and they come here leading two sets of counsel to ensure their positions are protected, surely they would have the availability to get medical evidence to come along and say this is nonsense or we do not agree with it.  Instead, they sit still and gave no evidence on the point.  Your Honours, I will come to this in due course, that the evidence of Professor Berry, who gave the actual epidemiological evidence called by them, did in fact support the medical theory that was advanced by two witnesses to whom I have referred.

Now, your Honours, if one were looking at the state of the evidence from the point of view of a plaintiff’s appeal, leaving aside for the moment if the plaintiff had lost and if one were leaving aside any restriction there might have been imposed by the requirement of the appeal beyond the question of law, then one might have thought that a verdict to the contrary –and again leaving aside the distribution as between the two appellants – would have been perverse, with respect.

FRENCH CJ:   How do you characterise the inferential process that was offered to the trial judge by the medical evidence?

MR JACKSON:   Your Honours, may I come to that in just a moment because I am going to go to that?

FRENCH CJ:   Yes.

MR JACKSON:   Your Honours, what we would submit is that once the view was adopted that the development of mesothelioma occurred by reason of cumulative exposure to which Mr Booth had been exposed, it was apparent that the exposures to the appellants’ brake linings, each of them, had played a part in the development of it and then question that then arose, your Honours, was whether those exposures had made a material contribution.  Your Honours, before going to answer the question your Honour was putting to me, and I do intend to come to that very shortly, but one does need to look at what the evidence was, what the findings were, about the possible exposures.

You will see that referred to in the primary judge’s reasons in volume 3 at page 1104.  It is to be found, your Honours, between paragraphs 5 and 21.  I will not read it out, but your Honours will see in the paragraphs 5 to 8 the very brief periods during which there was any exposure when Mr Booth was a boy; very brief periods.  You will see particularly paragraph 6, “as an eight‑year‑old” get out of the way.  You will see in paragraph 9, “he spent 20 minutes helping load hessian bags of asbestos”.  You will see then in paragraphs 10 through to 21 the work that he carried out as a motor mechanic. 

Your Honours, could I say these things.  If ones goes to the very limited exposure other than from brake lining work, it is very, very limited indeed.  If one goes to paragraphs 19 to 21 to see the description of the work involved in replacing the brake linings, it is very dusty work indeed and, your Honours, what one sees is that apart from a period of a little under three years in 1969 to 1972, that is referred to in paragraph 16, for 30 years he was engaged in replacing brake linings and there is then, your Honours, with the work of the character referred to in 19 to 21.  Your Honours, it is hardly surprising, we would say, that if one took those base circumstances, the judge then adopted the views which he set out in paragraphs 161 and 162 at page 1142.  You will see that in paragraph 161 he referred to:

The expert opinions as to fibre concentration –

et cetera, they proved to his satisfaction that –

the plaintiff’s exposure to the asbestos contained within brake linings materially contributed to the causes of his mesothelioma.

But he then said, in relation to paragraph 162, and this is, your Honours, where the question off inference is specifically referred to in the third line of paragraph 162, your Honours will see that he said:

An overwhelming inference of causation may be dawn from the following facts:

(1)      Mr Booth’s mesothelioma was caused by the inhalation of asbestos fibre;

Then, secondly, your Honours will see paragraph (2) set out and then the reference to the period of “27 years, week in and week out”, et cetera, and then paragraph (4).  Now, could I just say some things about that your Honours.  If I could go to subparagraph (2) of paragraph 162, true it is, as our learned friends have said, that mesothelioma may sometimes occur in persons where exposure to asbestos, other than background exposure, cannot be identified – cannot be remembered is perhaps a better way of putting it.  True it may also be that not every person who has worked a motor mechanic or, more specifically, has been involved in replacing brake linings contracts mesothelioma, but some do, your Honours, and, as the judge observed at paragraph 24, page 1108, three of the people who gave evidence before him had:

experienced cases of mesothelioma in their respective practices where the only identified exposure derived from working with brake linings.

The use of the expression was, in comparison, trivial in subparagraph (4) is a reflection of what one sees in paragraph 133 at page 1136.  Now, if I could just say about that your Honours, you will see that in the preceding paragraphs or in the paragraphs preceding paragraph 133 that what the judge has been doing is to accept parts of evidence, modify calculations, but in the end you will see that he works out the lifetime risks of mesothelioma taking into account adjustments to Pickford’s estimates.  He gives recasting of Professor Berry’s table.  Under the heading “Brake Repairs” you will see a figure arrived at of 30.6.  You will see under “Home Renovations” on the basis of 50 per cent amosite, it is 0.6, on the basis of 40 per cent crocidolite, it is 4.  Then “Loading Trucks” on the basis of chrysotile you get 0.15.

Now, if you add up the home renovations figure, 4.6 in total, together with the loading trucks figure, it is up to 4.75 and you compare that then with the brake repairs figure of 30.6, it is hardly surprising, your Honours, that one sees the judge saying at page 1143 subparagraph (4) of paragraph 162:

The previous exposure, in the course of home renovations and truck loading was, in comparison, trivial.

Your Honours, one also sees in this regard that the witnesses had expressed some scepticism about whether those early exposures were in fact likely to be significant contributions.  Could I give your Honours two references in that regard.  The first is in volume 1 at page 182.  Now, your Honours will see this is part of the cross‑examination of Dr Henderson.  It is the passage that commences about line 22 on page 182 and it is the part that starts, “Professor, I wanted to move to a new subject”.  What takes place, your Honours, in the cross‑examination on the remainder of that page and through page 183 over, I think, the top of page 184 is the exposures other than to the brake linings are put, but the way in which the questions are answered, if I could go, first of all, to page 182 immediately between lines 30 and 40, the answer commences:

Absent any other exposure on exhaustive inquiry, then I would conclude that it would have made a small but significant causal contribution towards the induction of his mesothelioma.

You will see that elaborated upon during the next four or five lines.  If one goes to the bottom of page 182 and then to the top of page 183 you see the answer on the first line of 183 again:

I would’ve given that on a balance of probabilities, not – it would’ve been one of the cumulatively lowest dose exposures I’ve encountered, but it was childhood exposure . . . so I would’ve said that it made a small but I would think significant causal contribution, incremental upon any background risk and of course at that age, his background risk would’ve been extraordinarily low.

If you go then to about line 24 he was asked and he answered:

Well, again it would be one of the lowest doses of exposure that I’ve encountered, but it was childhood and it probably did include commercial amphibole asbestos, and although the airborne fibre concentrations would have been very low, I think that it would’ve made a very small to small causal contribution also . . . 

A‑‑‑Okay, absent any other exposure, I would add a level of caution and not high confidence, say well, again it’s one of the lowest doses of exposure I’ve ever found but it’s an identified exposure in excess of any background –

Then, your Honours, finally at page 183 about line 42 or 43:

Well, absent any other identifiable exposure whatsoever, I would say well, it would have made a small causal co‑contribution –

et cetera.  Your Honours, could I also refer, in the same volume, to page 311?  If one goes to page 311 to the evidence of Dr Heiner you will see an answer commencing about line 25 and your Honours will see it concludes saying he thought it was “adventurous to say that”.  That passage goes through, I think, to the top of the next page, but you will see his expression of views. 

Your Honours, if I could go back to paragraph 162 at page 1143 in volume 3 we would submit it hardly sounds odd or unusual or, indeed, in our submission, wrong for a judge to say “Stand back for a moment.  Look at the matters that are referred to in paragraph 22 at page 1107”, and that is:

The plaintiff’s mesothelioma was cause by the inhalation of asbestos fibre.

Your Honours, there seemed to be some lack of enthusiasm in recognising that that was done but, your Honours, the judge is perfectly right in saying that.  Then he says:

Chrysotile asbestos has the capacity to cause mesothelioma.

The brake linings contained chrysotile asbestos.  Booth inhaled fibres limited from it.  Your Honours, one says, look at those matters, take into account that for 27 years week in, week out, as the judge said, this man was exposed to those fibres.  The other exposures were, in comparison, trivial.  In those circumstances, we would say the inference could properly be drawn that the work on brake linings was a cause; the greater cause, if I could use that expression, of the mesothelioma. 

Your Honours, how does one arrive at the inference?  The answer is, in our submission, one looks to see, in accordance with the various ways in which it had been phrased in the decisions that have been mentioned this morning, one looks to see whether that is something properly, and I appreciate, your Honours, that any adjective carries with it its own baggage, but one looks to see whether on the balance of probabilities the result in terms of the inference is one which is justified on the basis of the evidence.  In our submission, that would be so.

FRENCH CJ:   It might be a convenient moment, Mr Jackson.  We will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, I have been dealing with paragraph 162 of the reasons for judgment of the primary judge.  May I now move on from that.  In particular once the views have been formed that are set out in that paragraph it then became a question of looking more specifically at the position of the appellants and the position as between them. 

Now, could I pause to say this, your Honours.  The primary judge had accepted the medical evidence as to the cumulative effect of the exposure to asbestos and that that is so can be seen at, for example, paragraph 93 at page 1126, where, speaking of Professor Berry, he said he expressed:

his conclusions in terms of risk.  Because asbestos fibres act cumulatively to cause mesothelioma, those calculations . . . may be taken as estimates of causal contribution –

based on the observed incidence.  So your Honours will appreciate that underlying what is said in his further discussion, to which I will come, is an acceptance of the proposition that all exposures are contributory.

HAYNE J:   Contributory to what, the risk or cause?

MR JACKSON:   I am sorry, to the development of the mesothelioma, that is, they play a part in its causation.  Your Honour, I will come to the evidence in a little while, but that is the proposition we put.  So far as that was concerned, the appellants had manufactured the Hardie‑Bestos and the Hardie‑Ferodo brake linings in succession.  Your Honours have seen that in Amaca, 1953 to 1962, and Amaba, 1962 to 1982.  That is set out at paragraph 163 on page 1143. 

Now, your Honours, having said that, the question that then arose was how much of the exposure was to the appellants’ products and your Honours have seen that resolved in paragraphs 164 and 165, and that was in the end, in paragraph 164 at the bottom of page 1143, namely 70 per cent in respect to each of those periods.  If one pauses at that point the position which, in our submission, emerges is that during those very substantial periods of nine years and 17 years, during which Mr Booth was exposed to a great deal of asbestos dust, 70 per cent of that was attributable to the appellants.

That is in respect of those periods of nine years, on the one hand, with one of them, 17 years on the other.  We would submit that what the judge was saying, in effect, was that these are long periods – long periods of exposure and it is perfectly possible on those basic facts to form the view that there was a material contribution by each accepting, of course, the proposition that the exposure of all kinds as a medical matter was cumulative in the development of the mesothelioma.

Now, if one goes to paragraphs 161 and 162 and, in our submission, to the opening words of 166, it is apparent, we would submit, that he was forming those views.  He then went on to assign mathematical weight, as he said, if it be necessary, to the additional fibre burden and, your Honours, that he did, arriving at the figures in paragraphs 166 and 167 of 10 per cent and 20 per cent. 

May I just pause to say that it will be apparent that he did not, himself, in the opening words of 166, regard the mathematics as “necessarily compelling”.  If one goes back to the source of them at paragraphs 133 and following and, your Honours, when I say the source, I mean the source as determined after rejecting many parts of the evidence, but when one comes back to the evidence at page 1136 and, in particular, to paragraph 137, your Honours will see that what he said was there was an increase of the fibre burden of approximately 44 per cent. 

Now, some complaint has been made about the use of the figure 70.  Your Honours, if one goes to the actual evidence in Professor Berry in the same volume at page 906 you will see at paragraph 5.3 that he is really suggesting the figure of 70 per million and how he gets to that is discussed in 5.1, 5.2 and 5.3, but he figure he identifies is “lifetime risk of 70 per million”.  Then he is saying in the last sentence of 5.3, maybe there is a range, 70 to 140.  I am not quite certain how one got to 170 in paragraph 139, but you will see that the judge, in our submission, cannot really be criticised for using the figure that Professor Berry thought was the appropriate figure. 

Now, your Honours, in our submission, if one goes then back to what was done in paragraphs 166 through to 172, the judge was perfectly entitled to arrive at the conclusion which is set out in paragraph 172.  If one had a situation that in a case, to use the example again of a two vehicle collision, that one of the drivers was only 10 per cent to blame or perhaps 20 per cent to blame, it does not follow that the plaintiff would fail against that driver.  If the view advanced by our learned friends were correct one would think that the only circumstances in which there could more than one defendant liable would be cases where each one was more than 50 per cent or where there were two equal 50 per cents.

FRENCH CJ:   That is to do with the extent of their negligence, is it not, rather than the causal issue?

MR JACKSON:   Well, your Honour, it is right to say that is the ultimate result in terms of the way one would describe it, but there does have to be some assessment of a causal contribution and in arriving at the conclusion that there was negligence one assumes, on the evidence, that it amounts to a causal contribution.  The need to divide it up really only comes about if there is claim for contribution between the parties.

HAYNE J:   But the sense in which you are using the term “cumulative” is that not only is it indistinguishably cumulative, as a matter of fact it is not relevant to attempt to distinguish.  Not only you cannot, you do not have to.

MR JACKSON:   You do not have to, your Honour.  Do not have to in order to attribute responsibility as between the injured plaintiff and the tortfeasor.  Where there are claims as between tortfeasor a different question.

HAYNE J:   And you do not have to as between the tortfeasors because you speak of cumulative in a sense in which each element of accumulation is of identical significance.

MR JACKSON:   Well, your Honour, the answer is of significance.  Identicality may be a slightly different thing.

CRENNAN J:   Perhaps causal significance.

MR JACKSON:   Yes, your Honour. 

HAYNE J:   Well, you can explain what her Honour means by it then, Mr Jackson, since you assent to it.

MR JACKSON:   Your Honour, if I am allowed to say something, may I attempt to do so.  Why I express a reservation about what your Honour put to me was that whilst there is a course of events and, your Honour, could I just perhaps preface what I say by saying this.  The term “cumulative” is an abbreviation for a description of a process.  Now, I need to come to what it is, but it may be that the processes do not work at identical speed if one looks at the whole period in which they are involved.  It may be that they do not work in an identical way at all times during it.

But, in one way or another in terms of the pathology of it, they all contribute to the result.  They all play a part in the result and, your Honour, indistinguishable in the sense that one cannot identify precisely at any point what stage they reached except perhaps it may be, and I do not think the evidence descended to this, that if there were an autopsy carried out satisfactorily and a suitable time perhaps one might be able to identify something, perhaps some forms of invasive surgery – or to a degree invasive – might be able to bring about samples which would give some hint of what stage one was at.  Your Honour, I do not know that I can take that beyond that but that is the point I was seeking to make. 

Your Honours, could I come back then to some matters to which I said I would return.  The first is, I suppose, when did the mesothelioma occur.  Our learned friends per Mr Gleeson suggest in their reply submissions, paragraph 8b and c that there is no evidence about when he developed mesothelioma and there is nothing to show it is said that the later exposures were or were not causally relevant or irrelevant.

FRENCH CJ:   It was not in dispute, was it, that he first exhibited symptoms in late February 2008 and I think was diagnosed in April 2008.  Is that right?

MR JACKSON:   Yes.  I will give your Honours the reference in just a moment.  There is no hint, your Honour, of the mesothelioma having manifested itself at any time prior to early 2008.  You can see that from two references.  One is Mr Booth’s affidavit in volume 3, page 1057, paragraphs 1 to 8.

HEYDON J:   Are we talking about the same things?  The symptoms which Mr Booth noticed and others noticed in 2008, is that the same thing as the question whether or when Mr Booth developed mesothelioma?  In other words, is it not possible that he got the disease before the symptoms manifested themselves?

MR JACKSON:   I am sorry, your Honour.  What I am saying was that there was no hint of the mesothelioma having manifested itself and I meant by that, the occurrence of symptoms.  Now, your Honour, I do not dispute that the evidence suggests that he acquired at some – actually developed the mesothelioma, although the symptoms not yet obvious, at some point before that.  Precisely when, one does not know.  But the point is that neither of the appellants adduce any evidence to even attempt to establish that he would probably have developed mesothelioma anyway regardless of his further exposure to asbestos dust from products produced by Amaca or by Amaba.

Your Honours, that proposition that he would probably have developed mesothelioma absent them or absent one other of them, was not put to anybody.  Possibilities were raised but the situation was never accepted in a way which would support their case.  There were very serious reservations about it. 

Now, the next aspect to which I wish to go is this, that mesothelioma, on the evidence, was caused by exposure to asbestos and, relevantly, nothing else.  Your Honours, I say relevantly, nothing else, simply because there is some evidence in passage of Dr Musk’s evidence that workers in a particular area of Turkey have been affected by another – have acquired mesothelioma by reason of the existence in a particular mine of a mineral which I think is called erionite.  But no one suggests that that plays a part here. 

Your Honours, in our written submissions, we have set out the references to the evidence which demonstrate that the only proven cause of mesothelioma was exposure to asbestos.  Could I give your Honours two references in that regard – two of those references only.  One of them is Dr Leigh’s report from 3 February 2009 in volume 2 at page 752.  Now, you will see Dr Leigh’s report contains at page 757 about line 40 a reference to:

The whole issue of the evidence for brake mechanic asbestos exposure causing mesothelioma is comprehensively dealt with in an Amicus Brief in the Michigan USA Supreme Court ‑

Now, he was one of the persons who dealt with that amicus brief and it commences at page 770 and there is a table of contents which appears at page 768 and you will see item 4 listed in that table of contents about line 30:

Mesothelioma Is A Signature Malignancy For Asbestos Exposure -

If one goes to page 775, your Honours will see in the first four paragraphs the overall view of those involved, and then if one goes to page 782, you will see the heading at the bottom of the page “Mesothelioma Is A Signature Malignancy For Asbestos Exposure”.  I would ask your Honours to note that the paragraph immediately above that commencing, “As with the question” was a paragraph that was not admitted into evidence.  Having noted that, could I say then if one goes to page 783, one sees in the first two paragraphs on that page the statement:

There is no debate that asbestos causes mesothelioma –

I will not read it out, but your Honours will see those two paragraphs which make it clear asbestos is the cause and that is adverted to also in the paragraph commencing at line 21 on page 784.  Could I say, your Honours, just to avoid any difficulty, that the last paragraph on page 783 going over to the top of page 784 was itself not allowed into evidence.

Now, that is one very substantial passage of evidence in that regard.  A second can be seen in the evidence in volume 1, in the evidence of Professor Henderson, at page 187.  Your Honours have been taken to the passage already commencing about line 26.  May I go to it for two reasons?  The first is that your Honours will see that Professor Henderson said:

I think that for mesothelioma as opposed to lung cancer, effectively the only known cause worldwide is asbestos.  [It is], if you like, a signature malignancy – a [sentinel] malignancy for asbestos exposure where there is an identifiable exposure.

The second thing, your Honours, about it is something in response to our learned friends where he continued to say:

The increase in risk, if it was only 1.1 or 1.2, would I think for mesothelioma be a significant risk.

Now, your Honours will recall some submissions this morning that the risks were 10 per cent or 20 per cent was not much of a risk.

GUMMOW J:   Yes.  Do you say anything about the trial judge’s criticism of the Wong paper?

MR JACKSON:   Yes, we do.

GUMMOW J:   Will you be coming to that?

MR JACKSON:   I am coming to that, your Honour, yes.  A particular point, your Honour, is that, for example, Professor Berry who gave evidence, called by the other side, himself did not appear to accept the propositions in that Wong paper; not prepared to - the conclusions I mean by that, referring himself – and I will come to what his evidence was – his evidence was to the same effect as that of the two major witnesses on our side about the actual causation of it, the causation of the mesothelioma, your Honours; I do not want to tie myself up in words.

Now, your Honours, that asbestos is the cause of mesothelioma is significant because one is not, as was the case at Amaca v Ellis, seeking to identify which of two or more potential causes is the cause.  Here, what one has is a situation where the two were found to have been, other things being accepted, negligent, and negligent in similar respects in respect of similar subjects.  One is not saying is it caused by smoking or is it caused by asbestos.  Here, one knows what the causes are and the question is one of responsibility.  If I could go to Ellis 240 CLR 111 for a moment, your Honours, if one goes to paragraph 12 at page 123 one sees that:

The plaintiff expressly disavowed any argument . . . that demonstrating only that the exposure to asbestos ‑ ‑ ‑

GUMMOW J:   Sorry, which paragraph did you say?

MR JACKSON:   Paragraph 12, your Honour, page 123.

GUMMOW J:   Thank you.

MR JACKSON:   You see that argument was disavowed.  Then, your Honours, one sees at page 131 in paragraph 47 it was said:

The whole tenor of the plaintiff’s argument . . . was first, that causation was established as a matter of inference not direct proof, and secondly, that the inference of causation was to be drawn from a proper understanding of the epidemiological evidence . . .  It was not the plaintiff’s argument in this Court that Dr Leigh’s evidence . . . should be understood as offering an opinion that, independent of epidemiological analysis, it could be concluded that exposure to asbestos was a cause of Mr Cotton’s cancer.

Your Honours, one sees then in paragraph 48 the reference to the fact that the term “cumulative” was being used in a different way to describe the relationship between cigarette smoking, on one hand, and on the other hand, asbestos.  So your Honours will recall in that case, and having been on the opposite side that one did recall that one thought the point might be argued, but it was not argued, that there was a cumulative effect in terms of the asbestos. 

Your Honours, could I come then to the evidence of the two principal witnesses, and I want to deal first with Professor Henderson.  In our submission it is apparent from his evidence that, first of all, his views on causation were not merely a transcription of risk into cause; secondly, that his views are not simply expressed in ways which reflect no more than conclusions based on epidemiological matters; and, thirdly, that they are based on a view of the biological process and a view which is not just a reflection of risk, but rather is one which describes the underlying way in which mesothelioma is thought to operate.

Your Honours, could I say that Professor Henderson is not an ingénue in the area.  He comes burdened with the CV which your Honours will see in volume 3, page 993, and also his oral evidence commencing at, I think, page 150.  Other witnesses said he was a world authority, I think that is Dr Heiner’s evidence. 

Now, if one goes to Professor Henderson’s report first of all, his report of 8 September 2008, your Honours will see that in volume 2 at page 644.  Your Honours will see that his report commencing there describes what he was doing and then more particularly at page 653 he goes onto a fuller version, and could I go immediately to page 665. 

Your Honours will see that at page 665 in paragraph 13 he describes the proportions of brake linings he worked with which were manufactured by one party or another.  I think that when at the Mascot service station the first half in effect would be from Amaca, the second half Amaba.  At page 666 he refers to his “Appendix A” - that is about between lines 30 and 40 and at page 667, at the top of the page he refers to his annexure B dealing with brake materials.

Now, at the bottom of page 667 in a passage which goes over to about line 20 on page 668, he deals with the childhood exposure, et cetera, and arrives at the conclusion that your Honours will see about line 18 on page 668 that:

any causal contribution from this exposure –

that is cutting the fibro –

towards the development of Mr Booth’s mesothelioma would probably have been very small or miniscule in proportional terms.

He then at pages 668 and 669 deals with safe levels of exposure and concludes that there is none.  Your Honours will see in particular too at page 669 at the last dot point about line 30 he refers to the fact that his “opinion on the capacity of chrysotile to induce mesothelioma coincides with” various other reports of some standing to which he there refers.

GUMMOW J:   Well, at the bottom of 668 he makes it clear that he is not just referring to epidemiological evidence.

MR JACKSON:   Quite, your Honour, yes.  Your Honour, I should have said that, I think. 

GUMMOW J:   And likewise 669, line 22, “fibre clearance” analysis of lung tissue.

MR JACKSON:   Yes, and, your Honour, in a number of places in his evidence he makes it clear that whilst he regards epidemiological studies as of some use, he is principally concerned with the pathology of the matter.  Your Honours, if one goes to the bottom of page 669, you will see he was dealing with the question whether there was a recognised safe level of exposure, et cetera, and arrived at the conclusion at the top of page 670 that:

the work history for Mr Booth clearly indicates that his cumulative exposure to chrysotile asbestos –

which of course is from the brake linings –

would have been substantially in excess of any such very low exposure. 

Your Honours, one then goes to the bottom of page 670 and he said there:

As stated in Appendix B, if one approaches causation of mesothelioma relative to brake dust exposures using The Bradford‑Hill Criteria –

I will come to that in a moment –

one can state that the epidemiological data are inconclusive for brake lining work specifically, but epidemiological studies have also demonstrated quite conclusively that chrysotile – whether contaminated with tremolite or not –

Could I pause there to say this, your Honour.  The asbestos that went to make up the two types of brake linings came from Canada.  It was inextricably contaminated with tremolite.  Tremolite is another form of asbestos more toxic than is the case with chrysotile, so that was involved with it also. 

Then your Honours will see that he goes on to deal at the bottom of page 670 to page 671, the first new paragraph on that page, is to say:

it is my conclusion from pathobiological principles that substantial or protracted chrysotile (chrysotile-tremolite) exposure to dust derived from new (non heat‑altered) brake linings probably does have the capacity to induce mesothelioma in dedicated brake mechanics.

Then he makes a criticism of some of the epidemiological studies.  Your Honours will see that he said he was applying the Bradford Hill criteria.  The Bradford Hill criteria, your Honours, are something that was referred to actually in the exhibit in the case, exhibit PX18, your Honours.  It is not in the appeal books.  We have handed copies to your Honours.  It is an address which was given by Sir Austin Bradford Hill dealing with the subject matter which your Honours can see really in the third paragraph on the first page of the document in the left column and it sets it out what one might have thought is a pretty sensible set of considerations to be taken into account in determining whether, in circumstances where there is not absolute knowledge of a topic, what the likely cause - and one thing by another is, or relationship is.  You will see that he sets out the question at the bottom of the left column going up to the top of the right column on page 295. 

Now, your Honours, needless to say I will not go through this in detail, but could I just indicate what he is saying.  You will see in page 295 a heading in the third new column on the page “Strength”; page 8, the right column “Consistency” and you will see the first paragraph under that heading what he means by that.  You will see at page 297, the top of the page “Specificity” and your Honours will see what he means there; “Temporality” the bottom of page 297.  On page 298, left column, number (5) “Biological gradient”; (6) on the same column “Plausibility”; (7) in the right column “Coherence” and in the same column at the bottom of the page “Experiment” and then number (9) on page 299, the left column “Analogy”. 

Now, your Honours, could I just refer to the end of the paper in relation to the matter that was raised by our learned friends at first instance to the degree of uncertainty about things and what he said in page 12.  The last two paragraphs does seem fairly apposite where he said:

All scientific work is incomplete – whether it be observational or experimental.  All scientific work is liable to be upset or modified by advancing knowledge.

The theory of light, perhaps –

That does not confer upon us a freedom to ignore the knowledge we already have, or to postpone the action that it appears to demand at a given time.

Then there is an amusing observation with which to conclude an otherwise fairly heavy lecture.  Your Honours, I do not think I need to take your Honours to the particular reference in the transcript, but it is at page 176, line 31 where Professor Henderson said he applied those criteria.

GUMMOW J:   What is said as to scientific method by Sir Austin Hill, does that connect relevantly with the statement by the Court in Luxton v Vines 85 CLR at 358:

In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference –

and so forth.

MR JACKSON:   Well, your Honour, it does, but what the Bradford Hill criteria – and of course they really are an expansion of the matters that one would ordinarily think of taking into account to arrive at the conclusion expressed in the terms which your Honour has put to me.  Your Honour, it would seem eminently sensible if one was looking at arriving at the conclusion on something, the very nature of which is such that you cannot pinpoint a particular – it is not two vehicles colliding. 

If I could go back then to page 671 in volume 2, I referred to the first new paragraph on that page and the reference to “pathobiological principles”, et cetera, but you will see then at about line 21, he said:

Accordingly, my response to issue 3 is cautiously in the affirmative, ‘on the balance of probabilities’.

Issue 3, I think it was whether each of the parties had – yes, you will see that at page 653, the question:

Was Mr Booth’s exposure to asbestos from brake linings . . . sufficient to make a ‘material’ contribution to the development of his mesothelioma?

FRENCH CJ:   Does he say at any point what he understands by the term “material contribution”?

MR JACKSON:   Your Honour, I think he treats them as ordinary English words.  Your Honour, I will endeavour to ‑ ‑ ‑

FRENCH CJ:   He talks about a “causal‑contributory relationship”, I see at the end of that paragraph.

MR JACKSON:   Yes.  Your Honour, I do not think he actually says, “By material contribution I mean such and such”, but you will appreciate that he does draw a distinction between risk and cause.  You will see that he identifies circumstances where he thinks some causes are more influential, if I could use a neutral terms, than others.

If one sees, for example, at the top of page 670 where he says:

the work history for Mr Booth clearly indicates that his cumulative exposure to chrysotile asbestos would have been substantially in excess of any such very low exposure.

It is apparent, we submit, that he knows what he is talking about.  Could I just say, your Honours, perhaps if one goes to page 897 in volume 3, you will see that he said at about line 20, “The original question as asked was” and you will see that set out, and he said that he was then:

specifically requests my opinion as to whether Mr Booth’s exposure to asbestos from brake linings manufactured and supplied by Amaca and Amaba in the circumstances outlined in the letter of instructions of 01 December was “sufficient to make a ‘material’ contribution –

et cetera.  He said:

I usually re‑state such questions to avoid terms such as “the plaintiff” or “a ‘material’ contribution”—because I consider that these expressions represent legal terminology that I try to avoid.

Your Honour, you will see then at page 898 that under the heading “Discussion and Opinion”, he said:

I re-affirm my opinion . . . dated 02 March 2009.  In this regard, my response to Q3 as re‑stated on page 2 of that report remains unchanged, and in this regard I referred to the controversy concerning causation of mesothelioma –

et cetera.  He said:

In other words, it remains my opinion that Mr Booth’s mesothelioma is attributable to his total cumulative exposure to asbestos as set forth on pages 23 and 24 of my report of 02 March.  Within the context of that total cumulative exposure it also remains my cautious opinion ‘on the balance of probabilities’ that Mr Booth’s total cumulative exposure to chrysotile-tremolite dust derived from brake linings made a significant causal contribution towards the development of his mesothelioma, by way of a significant proportional causal effect superimposed upon any antecedent exposure . . . and also incremental upon any underlying ‘background’ risk of mesothelioma.

He then referred to paragraph 13 on page 14.  Your Honours, that was the list of places he had been employed at or worked at together with the proportion of Amaca/Amaba brake linings, and he said:

wherein the proportions of the brake linings manufactured by either Amaca or Amaba and used by Mr Booth in his work are set forth, ranging from nil to 100%.  Given that his total cumulative brake-dust derived from chrysotile-tremolite exposure made a significant proportional causal contribution towards the development of his mesothelioma, it is also my opinion that the dust derived from the proportions . . . made a significant causal contribution towards the development of his mesothelioma, as a substantial fraction of –

and your Honours will see the remainder of that answer.  Now, your Honours, of course in trying to avoid legal terminology, words like “significant” convey within themselves some notion of proportionality, scale and size.  Having said that, with respect, it is plain, we would submit, that he is conveying the notion that these made significant contributions and they are more than if one chooses to use the term “de minimis”, more than minimal, and they are, to use his words, significant.

HAYNE J:   What, if any, significance do we attach to both the original question as at 897 and the reframed question at 653?  It has been cast in terms, was the exposure “sufficient to make a contribution”, not did the exposure contribute, but was the exposure “sufficient to make a material contribution to the development”?  Does anything turn on that framing of the question?

MR JACKSON:   Not really, your Honour, no.  Your Honour, as he said, he tried to avoid saying “material contribution”, but the sufficiency – and you will see that he answered the question in his own way and it is the answer not the question, with respect, that is the important matter.  He was simply being asked, take the exposure to asbestos from these people’s brake linings, was that exposure in circumstances where he has given it - was that sufficient to make a material contribution towards it? 

Now, your Honours, that is simply saying, assume that he had the exposure as set out in these instructions, assume that he acquired mesothelioma, which you know, in the circumstances we have given to you, did it make a material contribution?  It might have been expressed more shortly, it might have been expressed differently, but in the end it is a question of the answer that he gives to it.

GUMMOW J:   Well, the answer is introduced by the word “Accordingly” at line 20 on 671, which leads you back at least to the immediately preceding paragraph, “probably does have the capacity to induce”, and the paragraph before that.

MR JACKSON:   Your Honour, paragraph 671, he is saying:

The relationship in causal terms is supported by experimental studies, and also from the perspective of biological plausibility.

GUMMOW J:   He says at 897 that he himself has examined “several thousand” pathology samples in this field.

MR JACKSON:   Yes, your Honour, he is hardly new to the field and he is very experienced in the area.  Now, your Honours, if one goes to page 697 – I should just add the last part on that page – he said:

It should also be emphasized that ‘risk’ in this context is no theoretical construct:  instead, it represents the ratio of the incidence rates derived from the actual number of observed cases ‑ ‑ ‑

GUMMOW J:   Where are you reading from, Mr Jackson?

MR JACKSON:   Sorry, your Honour, the bottom of page 697.  You will see when that paragraph goes over the top of the next page and it and the paragraph following it, he says at about line 17:

it is quite inappropriate simply to extrapolate the mean RR/OR to each and every individual comprising the population – for the simple reason that biological systems such as human beings vary in multitudinous different ways.

May I go, your Honours, to his oral evidence concerning the pathology.  You will see at page 156 in volume 1 and at the passage commencing about line 30, he said:

It is, I think, almost universally accepted that all asbestos exposures . . . will contribute causally towards the ultimate development of a mesothelioma. 

You will see then that at about line 38 he says:

So that –

I think the word should be “as” –

cumulative exposure increases, so does the risk of mesothelioma, and here I point out that the risk is not a theoretical construct, but rather it is a rate of the number of cases of mesothelioma one will see in the exposed populations.

Then if one goes over to page – I am sorry, I should have first referred to page 156, about line 40, and you will see at page 158 that he said, about line 15:

all exposure is contributory – 

He agreed with the proposition that all exposure was contributory –

the next question is to what extent.

Your Honours will see that the questions and answers go on to about line 28, and you will see again, if one goes to page 160 he comes then to a proposition that your Honours have been taken to already – I am sorry, page 162, I should have said, about line 12.  Now, I know your Honours have been taken to this but it is the passage which the primary judge accepted and it is very important.  Could I say he said:

it goes to the issue of the dose response model for mesothelioma induction by asbestos and that is that when there are multiple episodes of asbestos exposures and the individual concerned inhales increasing numbers of fibres on different occasions, that contributes to the total burden of asbestos fibres deposited in the lung and translocated to the pleura and it is thought that mesothelioma develops because of an interaction between the asbestos fibres and the mesothelial cells by way of secondary chemical messages and to simplify the answer, the point is that the more fibres there are the greater number of fibres there will be interacting with mesothelial cells which themselves undergo proliferation and so the progress goes on with increasing numbers of mesothelial cells interacting with increasing numbers of fibres, so that the ultimate development of mesothelioma and its probability of development will be influenced by the numbers of fibres interacting with mesothelial cells over multiple periods of time and probably over multiple different generations of mesothelial cells and I think this is a fairly well accepted model now –

I am sorry to have taken the time to read that, but it is a matter of some importance and, your Honours, it is not simply a passage which, as the fag end of it, as it were, disposes of the single fibre theory on his view, but it is also stating the pathological basis for the cumulative view, and there is evidence, we would submit, which the judge was prima facie entitled to accept and indeed more entitled to accept than otherwise for reasons to which I will come in just a moment. 

The first of them this, your Honours, that if one goes to the cross‑examination by my learned friend, your Honour sees at page 179, at the bottom of the page under the heading “Cross‑examination”, he agreed that he did not understand the biological processes completely, “neither does anybody else . . . we do not know each and every step”.  Then, your Honours, if one looks at the answer about line 42, he said, “we have some fairly good indications,” and then he goes on to deal with that at considerable detail over to the top of page 180 about line 14. 

Then, if one goes through page 180 – your Honours, I will not read it out – but your Honours will see at page 180 the propositions that are being put to him amount to this, that he is being challenged as to the certainty of the scientific knowledge and, your Honours, you will see on page 180 that that is the nature of what is being put to him.  It not being said that it is wrong or there is a different conclusion or there is other evidence to come which will show something else.  What you do see then, however, is at page 180, about line 38, he is shown two pages from the ‑ ‑ ‑

GUMMOW J:   Perhaps before you do that, at page 180, about line 28, he does not like this expression “risk”.

MR JACKSON:   Well, it is a bad term, your Honour, for two reasons.  The first is that in a context where someone has developed mesothelioma, one is speaking about risks that have, to use the phrase again, come home.  You are talking about what has caused the mesothelioma.  The second thing is that there are risks and risks, and what I mean by that is that if you took someone who cuts a corner every time they drive along a road, they take a risk every time they do it.  The day they collide with someone the risk that has come home is the risk they took that day, not the risk they took some other day.  It is different with what we are talking about here.  What we are talking about is something that on the evidence he is describing you are not talking really about risk, you are talking about things that have come to fruition.  There is a risk at some earlier point but the risk is one that continues and then comes to fruition. 

Could I come back then, your Honours, to page 180 about line 38 where what was put to him or what was going to be put to him was something he had said at two pages of an earlier transcript.  In the result, you will see at page 181 that the transcript was tendered and the transcript was tendered by the present appellants, not by us, tendered by the present appellants.  It was the evidence of Professor Henderson in the Moss and Hannell Cases.  That is the evidence to some of which the Court was taken yesterday, but there was some more.  Could I take your Honours to volume 2 page 584.  Now, this is Professor Henderson giving evidence in that case.  You will see at the bottom of page 584, he says:

The point is that all exposures above background from intervention or on any asbestos-containing material but all exposures above background within an acceptable latency interval all contribute to the causation of a mesothelioma so that depending on the timing and magnitude of any earlier exposure, if it did take place, this might or might not affect the causal contribution from the later handyman type exposures.

He speaks about proportionality at the top of that page and then halfway down page 585 he was asked:

What do you mean by causal contribution in that answer, Professor?‑‑‑People talk about causation, and the causation of mesothelioma by asbestos is usually assigned on the basis of the total cumulative exposure to asbestos.

Then, your Honours, at page 594 he came back to the lottery tickets analogy.  Your Honours were referred to an earlier passage where he referred to lottery tickets, but one needs to look a little more closely at what he said to see what he actually meant by it.  At the bottom of page 594 you will see that he said in the last five or six lines:

So, as I gave an analogy, if in a lottery of 100,000 tickets background risk gives you three tickets and a small handyman-type exposure gives you an extra two or three tickets, then the person wins the prize but the prize mesothelioma, if it is a prize, is not due to a single winning ticket but due to all of the tickets.  So that all of the tickets have contributed to the overall winning, if you like.

So it is not the one winning ticket, it is the five.  Your Honours, the analogies used in some of these would amuse some of the students, I suspect, but it is clear enough what he is saying.  He said –

So what I was trying to say is that each identified episode of exposure will impose an increased risk of mesothelioma by way of an incremental effect on top of background and on top of any others that have gone before.

Your Honours, could I just say if you go to page 595, about line 28, in a passage which goes there to the bottom of the page, over to the top of the next page, he sets out the way in which the exposure operates.  Your Honours, that evidence, as I have said already, was tendered by the present appellants and it was not challenged in cross-examination of Professor Henderson, nor was any evidence to the contrary adduced, and if one goes back to the cross-examination of Professor Henderson at page 181, that evidence was tendered two-thirds of the way through that page.  Then at page 182, about line 22, “I wanted to move to a new subject”.

Your Honours, this contest did have a slightly forensic aspect to it, if I could put it this way, but if you yourself adduce evidence to the same effect as that of Professor Henderson, and if you do not call evidence to the contrary, and if Professor Henderson’s evidence is not challenged in the relevant respect, then we would submit that the judge was entitled to treat it as particularly cogent. 

Your Honours will see, if I could just stay with page 182 for a moment, that I took your Honours to this, to pages 182 and 183 earlier.  The different topic was each of the answers was prefaced by words to the effect “absent any other exposure”.  Now, if one goes over then to page 184, one sees in the passage that goes from down to about line 30, that he agreed that individually – and this is what he said he was also saying, also being in addition to what was above:

that individually you cannot say whether . . . any risk came home, you can only say it was an increment to the risk –

but the risk in toto came home.

FRENCH CJ:   The terminology of “came home” might obscure the inferential process that is at work here.  Is it your proposition that the inferential process underlying all of this is that you have the epidemiological studies, you have incidents of mesothelioma in a population amongst people exposed to different levels and across different time periods to asbestos, and from that you derive a correlation, and you have an underlying model of some kind which suggests it is a causal correlation, not just a correlation which might be otherwise explained, and then when somebody who has been exposed to asbestos contracts mesothelioma, you infer from the existence of the risk based on those other factors which I have mentioned that there is a causal connection.

MR JACKSON:   Your Honour, that is right.  I put it slightly differently, with respect, in that in the sense that mesothelioma differs from some other things in that, relevantly, it has to be caused by exposure to asbestos.  That being so, one knows that that is what has caused it, so it becomes ‑ ‑ ‑

FRENCH CJ:   Perhaps I should have put the words “cumulative exposure” in what I said to you.

MR JACKSON:   Yes, I was really sort of starting a line before that, with respect, your Honour, in this sense one knows it has been caused by exposure to asbestos.  It then becomes a question of identifying what exposures there were to asbestos.  Some of them are ones which could not give rise to any ability to sue anyone, for example, it might be caused by one’s own activities, for example, but it may be that anyone who could be sued no longer exists.  But having said that, one knows it has been caused by asbestos, there then comes evidence, which will be the evidence in a particular case on what exposures there were to asbestos.  The situation which emerges then depends on the evidence.

This is a case where there was a significant body of evidence accepted by the judge to the effect that the mesothelioma is brought about by all the exposures to asbestos, so that it then becomes a question whether, in respect of the exposures brought about by one or both of the present appellants, that can be regarded as having made a contribution which is material to the asbestos. 

Your Honours, it is difficult to say in circumstances where, as the judge observed, there was a very long period of exposure to it over many years in two relevant tranches, that that was not a material cause - that one inferred, there is an inference there of course, but that is really what one is doing. 

Your Honours, could I then say, if one goes back to the bottom of page 184, you will see the reference by Professor Henderson to the fact that one needs to take into account pathobiological principles, and what we know about the biology of causation of disease.  If one goes then to page 200 at about line 28, it was put to him that:

Reasons have been advanced from time to time as to why asbestos inhaled during brake mechanic works, biologically speaking, is unlikely to cause mesothelioma . . . 

He said, well there has been some evidence, but in effect, he did not really agree with that.  Your Honours, if one is looking to see where his evidence about causation was put in issue, that is it.  Your Honours, when I say that is it, one also sees that further evidence of his in the earlier cases was put in on behalf of the appellants.  It is very difficult, in our submission, with respect, to say, the judge was wrong to accept that evidence.  If he accepted that evidence, it is as a practical matter the end of the case, we would submit, with respect.  Your Honours, I mentioned earlier the reference at page 665 at paragraph 13 to the list of the proportions of Amaca or Amaba brake linings which were used, and that is referred to again in volume 3 at page 898.  You will see at page 898, third last paragraph on the page, where he said he referred to that paragraph 13, and he said:

Given that his total cumulative brake‑dust derived from chrysotile‑tremolite exposure made a significant proportional causal contribution towards the development of his mesothelioma –

and your Honours will see the remainder of that paragraph.  Now, your Honours, may I just give your Honours a couple more references to Professor Henderson’s material without going to the detail of it.  Could I just refer your Honours first of all to his conclusions which you will see at pages 674 to 675 in volume 2.  Your Honours, could I refer also to appendix A, his page 681, about line 32 where he says:

One factor that emerges from the Peto model and its modifications is that when there are multiple asbestos exposures, each contributes –

et cetera, and your Honours will see the remainder of that.  Then, your Honours, about line 38 he says:

It is well known that there exists a dose‑response causal relationship between asbestos exposure and mesothelioma.

Your Honours, if one goes to page 682 you will see about line 19 the paragraph there commencing.  Now, your Honours, could I come back then rather more broadly to say something about his evidence.  In our submission, why should the judge not accept it?  The judge summarised the evidence at page 1108 in volume 3.  He quoted the contention on behalf of the present appellants at page 1113, paragraph 39.

He dealt with the argument at paragraphs 40 to 55 and could I refer particularly to paragraphs 40, 47, and 52.  Your Honours, could I go then to the evidence of Dr Leigh?  His report of 5 February 2009 commences at page 752 in volume 2.  If one goes to page 754, at the bottom of the page, he said that:

All exposure, recalled and unrecalled and unrecognised, would have contributed cumulatively to the risk of mesothelioma.  The major exposure would be the brake lining exposure.  The detail provided, while copious, is still insufficient to allow any reliable quantitative estimate of exposure . . . Brake lining exposures have been associated with asbestosis and lung cancer as well as mesothelioma, indicating that they can be quite heavy.

At page 758, at about line 35, he says:

While there are still many outstanding research questions in the pathogenesis of fibre induced mesothelioma, the current consensus view is that asbestos is involved in both the initiation phase and the promotion/proliferation phase of mesothelioma tumour development.

He refers to a recent monograph on it which is then quoted:

Carcinogenesis by fibres appears to be a multistage process –

Your Honours will see that is ‑ ‑ ‑

GUMMOW J:   What is the date of that monograph?

MR JACKSON:   1996, your Honour.

GUMMOW J:   I have just been looking at Fairchild and if that monograph was around so long ago, I cannot really understand why Fairchild was decided the way it was.  It is not our problem, I suppose.  But it has given rise to endless problems for the British though.

MR JACKSON:   Your Honours, I just do not recall exactly where it is in the application books, but your Honours will appreciate that Australia was one of the heaviest users of asbestos and in consequence it is one of the countries where there has been the heaviest involvement in mesothelioma.  It is one of the countries where there has been a great deal of work done in relation to it.  That is why one sees there has been a lot of consideration of it by Australians and Australians have been relevantly prominent in it.  Why a suitably geared up, if I could use that perhaps inapposite expression in relation to plaintiffs in the United Kingdom, why Australian experts have not been called on these matters to give evidence is a debatable question, your Honour, because ‑ ‑ ‑

FRENCH CJ:   I think the single fibre theory was around in the in the early 80s. 

MR JACKSON:   Yes.

GUMMOW J:   But it is around in 2001 according to trial in Fairchild, so it seems.

MR JACKSON:   That is so, your Honour.  But the point I would seek to make putting it a little more globally is that cases do depend on what the evidence is and what the evidence in that case is.  So, your Honours, if I could go on then to page 758, the passage that I was referring to goes right through until about line 42 on page 759 and your Honours will see the second paragraph, which is particularly important:

DNA repair processes are occurring . . . being activated and inactivated.

FRENCH CJ:   There was no evidence, was there, in this case to indicate or to support any inference as to the point at which a disease process might have become irreversible notwithstanding was asymptomatic?

MR JACKSON:   No.

FRENCH CJ:   There is no theory to it, as it were.

MR JACKSON:   No, that is so, your Honour, yes.  I am reminded, your Honour, to refer your Honours particularly to the first sentence of the paragraph commencing about line 25 on page 759.  Finally, if I could go in his report to page 766:

There was no evidence of erionite –

that is the Turkish one –

present in the present case.  There was a history of asbestos exposure –

and your Honours he said the –

risk has now been expressed and in my opinion it is more likely than not that each of the above exposures would have made a material contribution to causation.

And so it goes.  Could I come then, your Honours, to his oral evidence and it is in volume 1 and after what might perhaps be described as some to‑ing and fro‑ing, at the top of page 209 Mr Semmler asked:

in order to save time could I ask my learned friend through your Honour is there any contest that what I describe as the cumulative exposure mechanism, is the way in which asbestos causes mesothelioma.

That is not a surprising question to ask in view of what had taken place in relation to the evidence of Professor Henderson and then it emerged that it was an issue, “it has only been five days of evidence.”  At page 210 one then sees that, particularly about line 18, he was asked and said:

All exposure cumulatively contributes to cause as well as risk . . . Once the disease has occurred the risk has come home or been expressed.

You will see then, your Honours, at the remainder of that page he dealt with his views about what takes place and that goes over to the top of the next page.  Your Honours, I will not read it out.  Your Honours have seen similar material already.  If one goes from there to page 213, you will see at the bottom of the page he said:

Well it says in the report, actually, “An initiator and promoter”.  In other words, it can have effects at the initiation stage, the genetic change, and it can have effects at the proliferation multiplications –

and that goes over to the top of the next page, about line 18.  At page 225, about line 20, he noted that Professor Berry had not considered biological aspects in his report.  He noted at the bottom of page – I am sorry, your Honours, I have lost my reference there, but if one goes then to page 261 – I am sorry, the reference I meant to give was page 253 at about line 42.  He agreed that:

epidemiologic studies by themselves generally do not provide sufficient basis to support conclusions about causation –

and that “a range of data” had to be relied upon.  If one goes from there then to page 261 in his cross‑examination, at about line 31, he was asked:

Are you saying that you can not say now as a medical scientist whether or not the brake lining exposure was necessary for the contraction of the mesothelioma –

and at the bottom of that page, he said –

put it this way, any one of these exposures singly or in subgroups plus the background would have made a material contribution to causation.  You don’t need any single one, if you have one you don’t need the other three.  I mean hypothetically, but there is a difference between talking hypothetically and what actually happened.

Your Honours will see the answers that go down to about line 25.  He says at about line 22:

the risk of him getting mesothelioma is now a hundred per cent . . . 

So that the whole risk calculus goes out the window, you’re in a different – a discourse applies –

and he thought that the single fibre theory was one that was “silly”.  You will see that at page 263, at the bottom of the page, and at page 264, commencing at about line 35, he referred to the fact that the biological processes were not completely understood, and again he dealt with risk and cause at the bottom of page 269, about line 40, going through to about line 18 on page 270.  Your Honours, if one goes from that to page 311, you will see commencing about line 23 a passage to which I think your Honours may have been taken already, which goes over to about line 20 on page 312 where he said:

All fibres of asbestos contribute, in my opinion, to the development of mesothelioma –

I am sorry, your Honours, I think I have got to Dr Heiner without intending to get there quite so quickly.

I was going to say then that – I apologise, and I will come back to the doctor.  Your Honours, as in the case of Professor Henderson, Dr Leigh had been taken to the evidence he had given in the Hannell and Moss litigation.  I took your Honours to part of that this morning.  I do not think I need to go to it again.  You will see his evidence at page 535 and the qualification that he made to it in the particular case at page 353. 

Now, your Honours, if one stops at that point and looks at the whole of the evidence given by these two witnesses, there is no reason at all, in our submission, why the judge was not entitled to accept the evidence of them as to the manner of causation of the disease and the relevant contribution of the two appellants.  Your Honours, it is necessary to show that there was some error by the judge in doing that, in our submission.  It was very difficult to demonstrate. 

HAYNE J:   How does the evidence these witnesses gave accommodate a “but for” analysis?  You took us at 269 to Dr Leigh’s rejection of the proposition that but for exposure to the brake work – at least I think I am right in reading it – but for his exposure to the brake work, he would not have got mesothelioma was a proposition he rejected, was it?  Is that how I should read it?

MR JACKSON:   Well, he was asked, you cannot say that Booth would not have got mesothelioma without that exposure and he said the other way around, I think, not entirely clear, your Honour, what he is saying.  But, your Honours, if one goes to the “but for” test, what you have in circumstances where you have a result, the result is the acquisition or his acquiring the mesothelioma, you then have medical evidence which says that the mesothelioma is caused by the various exposures.  Now, one is not talking in a theoretical way on this assumption.  One is saying that the mesothelioma was caused by these things.  It is prima facie something saying this caused the mesothelioma.  Now, it is impossible to say that the “but for” test, if it is applicable, is one that can be entirely satisfied, but that is true also, your Honours, if one is talking about most cases where there is causation from multiple causes. 

FRENCH CJ:   Not links in a chain, but parallel causes.

MR JACKSON:   Parallel causes.  Your Honours, that is referred to, of course, in March v Stramare.  Your Honour, what I was going to say about that, your Honours, was if one goes ‑ ‑ ‑

HAYNE J:   It is a case of multiple sufficient causes, is what you say.

MR JACKSON: Yes, your Honour, that is it, your Honour. Your Honours, it is the passage, I think, at page 516 in 171 CLR 506.

GUMMOW J:   At 516?

MR JACKSON:   Yes, the last paragraph on 516:

The “but for” test gives rise to a well‑known difficulty in cases –

et cetera.  Then, your Honours, that passage of course is picked up in Royal. I think it is paragraph [137] at page 219 of the decision in Royal. 

GUMMOW J:   Which paragraph in Royal?

MR JACKSON:   I am sorry, your Honour, I thought I had the right reference to it.

CRENNAN J:   Paragraph [135] perhaps?

MR JACKSON:   Yes, thank you, your Honour.  Yes, in particular, in the right column of [135].

FRENCH CJ:   Well, that is making a distinction between causality and causation, I suppose.

MR JACKSON:   Yes.  Now, your Honours, may I just come back for a moment to the remainder of the medical evidence and I would go on and reduce the task, I think, because some of Dr Heiner I have done already without intending to.  If one goes to page 303 in volume 1, you will see at about line 40 he said that:

his mesothelioma is related directly to his exposure to asbestos incurred from his course of employment –

You will see at page 304, about line 15 he said:

I think it materially contributed.

At page 305, around line 20, “the academic teaching”, et cetera, “no threshold dose”, et cetera.  You will see then at the top of page 306 the reference to Professor Henderson.  Then, your Honours, at page 306 about line 28, “It’s not only Professor Henderson’s view”.  Page 307, about line 18, “total fibre” equation.  Page 310, about line 24, “The summation of my education and experience” et cetera.  The “biological processes” referred to at the bottom of page 310, about line 43 and going over to page 311, about line 15, and then there is a passage commencing at 311, about line 22 which goes through to I think page 312, line 20, which is where I ‑ ‑ ‑

HEYDON J:   You have taken us to this at least once already.

MR JACKSON:   Well, your Honour, once by mistake, yes.  What I was going to say was that is where I had got to, and that is, I think, where I wanted to go in relation to his evidence.  So far as Professor Musk is concerned, we would rely upon our written submissions, I think dealt with in paragraph 38 of our written submissions. 

Could I just say something then, your Honours, about the evidence of Professor Berry?  In our submission, that evidence rather supported the case for Mr Booth.  If one goes to volume 1 at page 371 at about line 45, he said it was the “total lifetime exposure” and the components that make up that lifetime exposure:

increase the risk and therefore, if the total risk was high enough that one could say in analogy with a heavy smoker with lung cancer is due to smoking, if the risk was high enough which is due to asbestos we would then be saying well which bits of exposure is it due to and we wouldn’t really be able to determine that except on probability grounds based on the sizes of the different types of exposure.  And I’ve given evidence of many cases over the years where it hasn’t been disputed that the asbestos has caused the mesothelioma but there is disputes or differences of opinion –

about who was responsible for what.  Your Honours, in the next exchange at page 372, about line 13, he agreed that what he was talking about was proportionality, and you will see also, your Honours, that he says:

when the risk comes home there is the cause, yes.

Your Honours, that is about line 15 on the page.  There was evidence also tendered by Amaca and Amaba that Professor Berry had given in another case and there he agreed that his calculations of increased risk in respect of each exposure were based on an assumption that it was one or the other rather than a combination of both that caused the illness.  You will see that referred to at page 609, that is what he first said at page 609, about lines 25 to 30.  After that, he agreed with the proposition that:

medically it would be unsafe to proceed on the basis of one or the other, everything rather suggests . . . it is the lifetime load –

and he agreed with that proposition.  Your Honours will see the next question and answer.  Your Honours, our learned friends have referred to the 22 epidemiological studies which it said demonstrate that a motor mechanic was not at an increased risk of contracting mesothelioma.  In the first place, your Honours, the trial judge, in our submission, did deal with this issue.  You will see it in volume 3, commencing at page 1120.  He said in paragraph 67:

Epidemiological studies have demonstrated that exposure to chrysotile asbestos increases the likelihood of contracting mesothelioma.

You will see that he refers to a concession that:

the question of the capacity of chrysotile to cause mesothelioma was not an issue. 

He referred to a paper and then the 19 epidemiological studies.  He refers to the paper by Wong at paragraph 71.  One then sees a discussion at paragraph 74, for example:

Professor Berry, commenting on the analyses of Wong and Goodman, said that the studies were sufficient to demonstrate that there was no large increase in the risk of automotive mechanics contracting mesothelioma . . . but that they could not demonstrate that there was no small increase in risk.

Your Honours will see then that he refers to the obvious criticism in paragraph 75 and that is the lack of specificity, if I can put it that way, of the various studies.  He refers to Dr Leigh’s evidence in paragraph 76 and, your Honours, one sees in paragraph 78 that he says:

At a relative risk of 1.2, for every 10 persons who may contract mesothelioma from background risks, an additional 2 will contract the disease because of occupational exposure as an automotive mechanic. 

The statement “there is no evidence” to suggest may be correct in saying there is no actual evidence, but it is misleading in the light of the other evidence to which he refers.  Your Honours, you will see in paragraph 79 there is a discussion, an acceptance by him apparently, of what Professor Berry said in relation to the Wong paper and paragraph 80 also in relation to the Goodman paper.  Your Honours, that goes through to paragraph 82 on page 1124 where the judge arrives at the conclusion:

that the epidemiological evidence specific to automotive mechanics is adverse to the submission that causation has been proved –

to put it shortly.  Now, your Honours, I should mention that in his report, which your Honours will see at volume 3 at page 906 about line 15, Professor Berry said that he thought:

it possible to side step the above controversy.  Asbestos brakes are made with some asbestos chrysotile content.  Those who work with these brake products will therefore be exposed to chrysotile asbestos.  Therefore the health effects of such exposure can be evaluated –

et cetera.  Professor Berry then at page 908 about line 20 on the page proceeded to make a calculation of increase in risk in addition to the background risk and, your Honours, he was asked in relation to Mr Booth in his oral evidence in volume 1 at page 368 at lines 35 to 40 – he agreed:

that an increased risk from the brake repair work has been identified.

Your Honours at about line 25 on that page he said that his calculations were based on:

a mathematical quantitative model to predict certain effects –

but he said:

they’re not based on a biological analysis, shall we say, but they do – they are related to the biological mechanism insofar as that mechanism is driving the occurrence of mesothelioma –

et cetera.  Your Honours, could I come then to another – we would submit that the judge is entitled to take the views that he did.  If one goes to volume 3, page 1117, at about line 45 on the page, paragraph 55 and also at about line 20 on the next page:

The fact that the incidence rises with increasing dose suggests that the further exposure plays a causative part in the aetiology of the disease. 

Now, your Honours, could I come next to the submission about the judge’s so‑called mathematical mistake.  Your Honours, we must be getting very close to questions of fact rather than law in that regard, with respect.  The trial judge had accepted that the mechanism by which mesothelioma developed was probably explained by the cumulative effect explanation.  He then went on to say, to determine, whether each negative exposure made a material contribution.  He was using in that regard the evidence that was suggested by the appellants, namely Professor Berry’s estimates of cumulative fibre load to estimate causal contribution.  You will see that in paragraph 93 on page 1126, the passage I took your Honours to earlier. 

Your Honours, we would submit that if one looks at the way in which he utilised his calculation that one cannot really suggest that what he did was incorrect.  At paragraph 133 on page 1136 he set out his estimate of lifetime risks caused by additional fibre burden.  You will see the figure that I have taken your Honours to already.  The comparison between the brake repairs and the others is pretty stark, and you will see the conclusion of 44 per cent at the top of page 1137. 

Now, although he did not think that those calculations were particularly compelling, and that the estimate of cumulative fibre concentrations experienced by Mr Booth were not accurate and that it was unnecessary to decide, he then attempted to work out on that basis what was the additional fibre burden and your Honours have seen what he said.  It was not a case of comparing one period with another, but looking to see what was affected by the particular exposure in each case and he is perfectly entitled to look at it by reference to what is called the background exposure.

Your Honours, could I deal with a couple of other matters?  One concerns the Court’s decision in Ellis 240 CLR.  Our learned friends referred to page 129 and page 131.  Your Honours, a material contribution is not necessarily 50 per cent.  As we submitted earlier, only one party could be found liable, perhaps two parties if they were 50 per cent each.  The passages in March v Stramare to which I referred earlier demonstrated that there can be more than one cause and they may have different relative potencies.  If one goes to the decision in the Supreme Court of the United Kingdom in Sienkiewicz [2001] 2 WLR 523 and to Lord Phillips at paragraph 17 on page 530, he said that:

There is an important exception to the “but for” test.  Where disease is caused by the cumulative effect of the inhalation of dust, part of which is attributable to breach of duty on the part of the defendant, and part of which involves no breach of duty, the defendant will be liable on the ground that his breach of duty has made a material contribution to the disease ‑

He referred to pneumoconiosis but, your Honours, this present case is one where what you have is a disease which is not divisible.  It is one disease, it occurs in the end at a particular time after a process has taken place and one looks to see what contributions have been made to it and if one accepts the evidence given in this case then all the exposures have made a contribution.  Some might in the end seem trivial as a matter of law, but in the present case, one could not say that. 

What you have is relevantly two periods of exposure, or a period of exposure divided into two because a different party’s products are involved.  But you have those periods of exposure, each of which was substantial, each of which – once one accepts the medical evidence on our side – was something that was part of the – I am sorry, I am putting that badly.  I am perhaps not putting it at all – each of the periods of exposure was one which made a contribution to the development of the one disease. 

There is not a way of distinguishing between them.  Each of them went on for a considerable period and each of them made a contribution towards the ultimate development.  In those circumstances, in our submission, it is perfectly appropriate to say each is liable for - each made a material contribution, each is liable for the damages, that involving the anterior proposition that there is a legal responsibility for them.

HAYNE J:   Can I see if I can draw together at least my thoughts about whether they are going to replicate your argument.  I understand the argument to proceed by possibly six steps.  One, Mr Booth had the disease.  Two, the disease was specific to asbestos.  Three, you say the evidence properly understood amounts to the proposition all exposure contributes.  Four is that the incidence of the disease or, if you like, the prospective risk of contracting the disease rises with dose.  Five, there are two periods of significant dose, significant exposure in Mr Booth’s case. 

It is the sixth step which you have just been developing which particularly I invite attention to.  You say no distinction can be drawn between the two periods.  I wonder whether that proposition can be expressed as being (a) perhaps both periods were necessary conditions, (b) perhaps both periods, or each period rather, was a sufficient condition.  But the evidence does not admit of the conclusion, you say, that either of the periods, that is, focusing on either of them, that that period was neither necessary nor sufficient.

MR JACKSON:   Yes, I think I would adopt what your Honour has put to me.

HAYNE J:   Is that the way a lot of your argument comes down to?

MR JACKSON:   Yes, quite, your Honour.  Yes, it is.  But may I just add something to it in this way.  It may have been the case that if Mr Booth had gone completely out of dealing with brake linings at the time when the first of these companies ceased making these brake linings that he would not have acquired mesothelioma.  It may have been, but the evidence does not demonstrate that, but it is a possibility, but it is a possibility which in a sense does not arise because the fact of the matter is that (a) he did go on using brake linings and he did develop mesothelioma.

Now, because the diagnosis of the pathology of development of mesothelioma is one which says that it is caused by the aggravation of all the – that is a bad word, your Honour, but your Honours will appreciate – by the accumulation of all these matters and the interactions, the reality is that he did acquire it and the ingestion of asbestos fibre that occurred during the first period is one which has played a significant part in the development of the mesothelioma which in fact occurred.  Your Honour, I do not know that I can put that differently.

GUMMOW J:   Bearing in mind, looking at Sienkiewicz, you took us to Lord Phillips, did you?  Yes, paragraph 17. 

MR JACKSON:   Yes.

GUMMOW J:   I am not sure, in the light of March v Stramare, it is correct to speak of an exception to the “but for” test, particularly when you look at paragraph [138], Lord Rodger again, that is to say, it is not just this sort of case where material contribution is in the picture.

MR JACKSON:   Sorry, did your Honour say ‑ ‑ ‑

GUMMOW J:   It is not just this sort of case where you talk about material contribution, it is a general proposition as sufficiency.

MR JACKSON:   Your Honour, sometimes the proposition is put too shortly, but one does have to look at, for purposes of this case, what is involved and if one starts from the factual proposition that the progress leading to mesothelioma is as the primary judge accepted then the rest, in effect, follows, in our submission.

GUMMOW J:   Yes, it is a bodily process over time.

MR JACKSON:   Yes, indeed.

GUMMOW J:   Then you ask, was there a material contribution to that bodily process over time, I suppose.

MR JACKSON:   Yes, and the answer on the medical evidence, yes, there was.  Your Honours, could we ‑ ‑ ‑

GUMMOW J:   You do not talk about risks because the process has well and truly been established.

MR JACKSON:   Yes, indeed, that is right, your Honour.  One can use a number of phrases to say it has come home and so on but one is, in that sense, looking at what has happened, not what might happen.  Your Honours, could I just say something about – and this is the last thing I wanted to say orally in relation to Bonnington Castings.  Of course, your Honours, it is a decision where one has to look at the particular facts.  The use of the words “de minimus”, et cetera, no doubt are a reflection of the argument in part, your Honours referred to that, but the question in the

end is whether the contribution is material.  It is an ordinary English word and there is no need, in our submission, to look for difficult synonyms.

Here, in our submission, the contributions were plainly material.  Your Honours, we rely on our written submissions in these matters.  There are some aspects of those I have not dealt with orally but we rely upon them.  But as I submitted earlier, the case fundamentally turns on the evidence of the progression of the disease.

FRENCH CJ:   Thank you, Mr Jackson.  Yes, Mr Owens.

MR OWENS:   If the Court pleases, between Mr Watson and I we have agreed that Mr Watson will go first and if necessary I will say something after him.

FRENCH CJ:   Yes, all right.  Yes, Mr Watson.

MR WATSON:   May I just deal with Justice Hayne’s summary of the submissions, and of course there is a contest about the second proposition but I shall not go over the submissions made yesterday, I will just refer to them.  In the fifth proposition, picking up Mr Jackson’s submission of two significant periods, may we point to this.  There is a third significant period and that started the day the plaintiff was born and it continued right up until 10 years before the symptoms were manifest, and that is the background risk.  But that is what has to be put into context. 

If, as we respectfully submit it must, the cumulative effect theory does not mean that all fibres are necessary then we are left with a comparison of competing risks and the case becomes either very similar or indistinguishable from the issue which had to be determined in Amaca v Ellis.  While I am on Amaca v Ellis, much of the submission put on behalf of the first respondent has been directed at the word “cumulative”, and the word “cumulative” here is at least as slippery as the word “material contribution” or the word “material” in that context or the word “risk” when used interchangeably with “cause”.

But I could do no better than take your Honours to that case and see that in the course of argument this very issue had been raised at page 116.  This is the argument made by Mr Abbott on behalf of the State of South Australia in about the fourth line, “They used the word ‘cumulative’” and there is an observation by your Honour the Chief Justice.  That, we would respectfully submit, is precisely what is occurring here. 

In relation to the evidence which your Honours have been shown, as to the manner in which the biological process might be explained, described briefly as “multistage”, that still tells the Court nothing about, for example,

whether it was necessary at all that any fibre which emanated from my client’s products, and towards the very end of the period, was involved.  All these questions remain unanswered, and that is where the Court comes up against the difficulties described in the UK as “the rock of uncertainty”.  The fact that it is multistage does not mean, for example, that at any point in time a number of fibres inhaled did actually have a role or that they made a material contribution.  That is all left up in the air.

Your Honours, there was some reference to Professor Henderson’s use of the Bradford Hill criteria, and there was a reference to volume 2 of the appeal book in that context, page 670.  I draw attention to this because there was a moment when your Honour Justice Gummow asked a question in the context of the submission arising from the great old case of Luxton v Vines. I want to show your Honours at page 670 Professor Henderson was not talking about causation in this case, far from it. He was applying the Bradford Hill criteria, that is at the foot of the page, to a particular question, whether it could be said at all that handling brakes gives rise to a risk of mesothelioma. That is in appendix B.

Your Honours can see that, but line 15 of the appeal book on that very page, the heading is “Does Exposure” et cetera.  So tentatively there, applying Bradford Hill, Professor Henderson concluded that exposure to asbestos emanating from brakes might cause mesothelioma.  It is nothing to do with causation in this case.  I believe Mr Owens is going to take your Honours to some other evidence that Professor Henderson gave in Hannell.  I will leave that to him.

Finally, at the commencement of the submissions, Mr Jackson drew attention to the fact that there had not been separate representation, at least through counsel, at the trial and that somehow or another meant that the two defendants were lumped in together.  With respect, we have shown your Honours that very specific submissions were directed at the need to consider each defendant’s position separately and we do not understand that the status of representation where there is no immediate or obvious conflict between the parties could alleviate the trial judge or, for that matter, the Court of Appeal from applying a rule of law.  Thank you, your Honours.

FRENCH CJ:   Thank you, Mr Watson.  Yes, Mr Owens.

MR OWENS:   If the Court pleases.  In relation to the inference as to causation that is required to be drawn by the plaintiff in this case, can I just say these things?  First, the capacity of asbestos including chrysotile asbestos to induce or cause mesothelioma is accepted.  Second, the fact that the risk of a person developing mesothelioma increases with increased exposure to asbestos may also be accepted. 

The critical point in this case arises in relation to Mr Jackson’s submission that there is a significant body, I think he said, of evidence in this case that mesothelioma is caused by all exposures.  That proposition should not, for the reasons given by Mr Gleeson yesterday and Mr Watson this morning, be accepted.  Can I give one further reference, however, in relation to the evidence of Professor Henderson in Hannell that Mr Jackson took your Honours to earlier this afternoon.  It is in volume 2 and if I could ask your Honours to turn to page 585.  At about line 25, Mr Jackson pointed out the question:

What do you mean by causal contribution in that answer –

and the answer thereto.  Mr Jackson then turned to page 594, could I ask your Honours just to go to page 592.  I do not think your Honours have been shown this.  I apologise if you have.  At the bottom of page 592 another question was put to Professor Henderson:

Professor, you were answering a question from me, I think, about what you meant by causal contribution –

The Professor said that he supposes that what he was trying to say is:

that there is a relationship, or a dose response relationship between asbestos exposure and the likelihood [or risk] of the development of mesothelioma and that when there are multiple exposures each exposure is considered to add to the overall risk . . . so that each exposure will exert an incremental increase in risk on top of background and on top of [other] exposures that have gone before.  In terms of the causation, again it comes down to probabilities –

and that refers to the evidence that Mr Gleeson went through in some detail yesterday.  There were various analogies referred to – armies, sperm and ova and so on but the gist of it is that the likelihood that you will get mesothelioma increases with the number of fibres to which you are exposed simply because most fibres to which you are exposed do not do anything bad to you.  So the more you are exposed to the greater the chance that there will be a malevolent reaction.  He says:

I couldn’t do better than to quote from page 4 of Dr James Leigh’s report –

and I will not read it but your Honours will see that there is a word in parentheses marked “indistinct”.  That word is “stochastic”.  Professor Henderson said that that was what he meant at – I do not have the reference immediately to hand, but when this was tendered to him he said that he meant stochastic there or he would have said stochastic there.  At the very end of that paragraph he says:

So there is a theoretical basis to explain the increase in risk in terms of the number of fibres inhaled and the more fibres that you have the greater the probability –

and so on.  In that regard, there have been several references to the fact that the single fibre theory has been discredited or rejected as silly, amongst other words.

If your Honours could just turn to page 595, there is a passage that indicates the reason why that theory is regarded as silly and, at least on the basis of this evidence, it does not appear to be because it is biologically impossible.  It is because it is biologically very unlikely.  It is about line 25 in the answer Professor Henderson says:

It’s just that the dose is so low that the risk is disappearingly low and that the risk goes up as the total number of inhaled asbestos fibres goes up –

and so on.  So there does not seem to be any biological reason why one fibre could not do this.  It is just that you have to be extraordinarily unlucky for it to do so.  If it is accepted that there is no evidence from which one can infer that every exposure causally led to mesothelioma, then one is driven back to comparing the extent to which risk has been added to over background and over other exposures.  Mr Jackson made many references to the fact that here we had isolated short exposures when Mr Booth was a child, compared to sustained exposures when he was an adult. 

Your Honours have already been taken to this, I will not take you to it again, but Professor Henderson described the cumulative exposure of Mr Booth to asbestos through his brake work, that is work with all brake fibres not just Amaca and Amaba fibres, as being low.  The reference to that is volume 1, page 159.  To conclude that point, at paragraph 133 of the trial judge’s judgment and following if one moves away from labels such as trivial and substantial, one gets to the quantification or the best quantification of increase in risk there.  The trivial exposure was an additional four per cent and my client’s added increment to risk was at the most 10 per cent unless if you accept Mr Watson’s argument on the maths.  So when background risk was 70 life risks per million, the effect of the Amaca exposure was to move that to 77 at most.  That is the context in which the increase in risk must be viewed.

Finally, Mr Jackson said that one does not need to ask whether Mr Booth would have developed mesothelioma even if he stopped working

in 1962, or so the argument would go, I suppose, at any other date.  In that regard, I simply refer to what I will call the timing point raised by Mr Gleeson yesterday.  That point becomes important, namely the evidence does not tell us one way or another whether by 1962 or any other date, Mr Booth’s mesothelioma had developed, such that it would manifest itself in 2008 and every exposure after that had no causal role to play in relation to it.  Those are my submissions.

FRENCH CJ:   Yes, thank you, Mr Owens.  The Court will reserve its decision.  The Court adjourns until 9.45 tomorrow morning for pronouncement of orders.

AT 4.28 PM THE MATTER WAS ADJOURNED