Amaca Pty Limited (Under NSW Administered Winding Up) v Booth Amaba Pty Limited (Under NSW Administered Winding Up) v Booth [2011] HCA 53 14 December 2011 S219/2011 & S220/2011
ORDER
In each matter, appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation
J T Gleeson SC and N J Owens for the appellant in S219/2011 (instructed by Holman Webb Lawyers)
G M Watson SC with J C Sheller for the appellant in S220/2011 (instructed by DLA Piper Australia)
D F Jackson QC with S Tzouganatos for the first respondent in both matters (instructed by Turner Freeman Lawyers)
Submitting appearance for the second respondent in both matters
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Amaca Pty Limited (Under NSW Administered Winding Up) v Booth Amaba Pty Limited (Under NSW Administered Winding Up) v Booth
Evidence – Expert evidence – First respondent sued appellants in Dust Diseases Tribunal of New South Wales – First respondent claimed exposure to asbestos fibres in breach of each appellant's duty of care caused his mesothelioma – First respondent's expert evidence that cumulative exposure to asbestos contributed to mesothelioma accepted at trial – Appellants led epidemiological evidence disputing link between exposure to asbestos of members of first respondent's profession and risk of mesothelioma – Whether inference of fact concerning contraction of disease reasonably open on evidence.
Negligence – Causation – Whether more probable than not that appellants' negligence was a cause of first respondent's disease – Whether issues of causation lie within common knowledge and experience – Role of expert medical evidence.
Practice and procedure – Appeal – No evidence – Appeal from Dust Diseases Tribunal of New South Wales to Supreme Court of New South Wales – Section 32 of Dust Diseases Tribunal Act 1989 (NSW) confers a right of appeal to Supreme Court against decision of Tribunal "in point of law" – Whether Tribunal erred in point of law when deciding that appellants' negligence more probably than not a cause of first respondent's disease.
Words and phrases – "causation", "cause and consequence", "epidemiological evidence", "manifest error", "mesothelioma".
John Booth, a retired motor mechanic, suffers from malignant pleural mesothelioma. He had two brief exposures to asbestos as a child and youth in connection with home renovations and one brief exposure when loading a truck in 1959. He attributes his disease to his exposures to asbestos in brake linings on which he worked over 30 years between 1953 and 1983[1]. In July 2008, he commenced proceedings in the Dust Diseases Tribunal of New South…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Amaca Pty Ltd v Booth [2011] HCA 53
Case
[2011] HCA 53
Decision Date
CaseChat Overview and Summary
Amaca Pty Ltd and Amaba Pty Ltd appealed to the High Court of Australia against a decision of the Dust Diseases Tribunal of New South Wales. The first respondent, Mr Booth, had sued the appellants alleging that his contraction of mesothelioma was caused by his exposure to asbestos fibres in breach of their respective duties of care. The Tribunal had accepted the first respondent's expert evidence that cumulative exposure to asbestos contributed to mesothelioma, despite the appellants leading epidemiological evidence disputing a link between asbestos exposure in Mr Booth's profession and the risk of mesothelioma.
The High Court was required to determine whether the inference of fact concerning Mr Booth's contraction of mesothelioma was reasonably open on the evidence presented. Specifically, the Court had to consider whether it was more probable than not that the appellants' negligence was a cause of Mr Booth's disease, and whether issues of causation in this context lay within common knowledge and experience, or required the role of expert medical evidence. A further issue was whether the Tribunal had erred in point of law, within the meaning of s 32 of the Dust Diseases Tribunal Act 1989 (NSW), when deciding that the appellants' negligence was more probably than not a cause of Mr Booth's disease.
The Court reasoned that the evidence supported the Tribunal's conclusion that the appellants' products had causally contributed to Mr Booth's disease. It was not disputed that Mr Booth's mesothelioma was caused by the inhalation of asbestos fibre, that chrysotile asbestos had the capacity to cause mesothelioma, and that the brake linings manufactured by the appellants contained chrysotile asbestos, which Mr Booth inhaled. The primary judge had found that exposures from other activities were insignificant, and that all exposures to chrysotile asbestos, other than trivial or de minimis exposure, occurring within a specific latency period, materially contributed to the cause of mesothelioma. The Court accepted the expert evidence presented, which provided the necessary scientific knowledge to understand the cause of the disease and stated conclusions based on that knowledge.
The appeals were dismissed with costs.
Orders
Orders of the court
In each matter, appeal dismissed with costs.
Background
Background to the litigation
For the reasons that follow the evidence was sufficient to support the conclusion of the Tribunal that Amaca and Amaba's products caused Mr Booth's disease. The appeals should be dismissed with costs.Factual background The following factual background emerged from the findings of the primary judge and is not in issue in these appeals. John Booth was born on 26 April 1937. He first experienced the symptoms of his disease, shortness of breath and chest pains, in February or March 2008. He was diagnosed with mesothelioma. There is no serious contest that his disease was caused by the inhalation of asbestos fibres. Mr Booth was exposed to asbestos fibre of different kinds and at different times over many years since his childhood. There were three brief exposures between 1943 and 1959. As a child in 1943, he helped his father with the cutting of asbestos sheets for use in the renovation of their family home. He held the sheets in place. The cutting process took about half an hour. In 1953, he helped his father in the building of a fibro garage over a period of two days. He held asbestos sheets in place while his father cut and nailed them to a timber frame. In 1959, Mr Booth worked briefly as a truck driver. On one occasion during that period he spent about 20 minutes loading bags containing asbestos onto his truck. The brief isolated exposures described in the preceding paragraph were dwarfed by Mr Booth's occupational exposure to asbestos in brake linings during his career as a motor mechanic. Mr Booth commenced his apprenticeship in February 1953 and completed it in April 1954. From 1954 until 1983 he worked as a motor mechanic, save for an interregnum between 1969 and 1971. His work, for a variety of employers, included the replacement of brake linings made from asbestos. The frequency of the replacement tasks varied from twice a month to three times a week depending upon the particular employment. Mr Booth's work in replacing brake linings required him to hammer rivets through holes in the linings in order to fix the linings to metal shoes. He would drill holes in linings when the misalignment between the manufactured holes and corresponding holes in the metal shoe was too great to allow rivets to be forced through both. His work also involved grinding the leading edge of brake linings on a bench grinder. This grinding generated asbestos dust which collected on his clothes, on the workbench and on the floor of the workshop. It would be re-agitated into the atmosphere by brooms, passing feet and the use of compressed air to clean the workbench. It took Mr Booth about four hours to replace the linings on a passenger vehicle and up to three hours per wheel to replace the linings on commercial trucks. Hardie-Bestos and Hardie-Ferodo brake linings were manufactured by Amaca between 1953 and 1962. From 1962 to 1983 they were manufactured by Amaba. Mr Booth worked with a number of different brands of brake linings during his career as a motor mechanic. The primary judge found that 70 per cent of the asbestos fibres to which he was exposed between 1953 and 1962 were released from brake linings manufactured by Amaca and 70 per cent of the fibres to which he was exposed from 1962 to 1969 and from 1971 to 1983 were from linings manufactured by Amaba[10].[10][2010] NSWDDT 8 at [164]-[165].
Evidence
Evidence Before The Court
It should be emphasised that the resolution of the issue before this Court in Ellis does not govern the issues in the present appeals. Ellis involved alternative causes of the plaintiff's lung cancer, asbestos inhalation and inhalation of tobacco smoke; the plaintiff had not shown that it was more probable than not that exposure to asbestos had made a material contribution to his cancer[94]; but the evidence in the present case, to which further reference will be made, was that, unlike the situation regarding lung cancer, exposure to asbestos is effectively the only known cause of mesothelioma.[94](2010) 240 CLR 111 at 135 [65].The evidence The state of medical and scientific knowledge concerning what may be sufficient exposure to asbestos to engender mesothelioma may develop as further study is made. This advancing state of knowledge may be reflected in the evidence given from one case to the next. What is taken, in one case, to be a proposition of law derived from the attribution of legal liability, or its absence, may require consideration of the particular state of the evidence from which the court reduced a question of causation to the relevant standard of legal certainty. In the present litigation the following matters were not in dispute: (1) Mr Booth's mesothelioma was caused by inhalation of asbestos fibre; (2) chrysotile asbestos has the capacity to cause mesothelioma; (3) the brake linings manufactured by the appellants contained chrysotile asbestos; and (4) Mr Booth inhaled chrysotile asbestos from the appellants' products. Curtis DCJ found that 70 per cent of the asbestos fibres to which Mr Booth was exposed over the period between 1953 and 1962 were released from Amaca products and the same percentage of Amaba products represented exposure in the period between 1962 and 1983 (excluding the period he was doing other work). His Honour also found that his exposure from other activities, including home renovations when he was a child, were insignificant, trivial or de minimis. Section 25B of the Act provides that, without leave of the Tribunal, "[i]ssues of a general nature" determined by the Tribunal may not be relitigated or reargued in other Tribunal proceedings, whether or not they are between the same parties; in deciding to grant leave, the Tribunal is to have regard to the availability of new evidence, whether or not previously available. The primary judge stated that, for the purposes of s 25B, he determined that "all exposures to chrysotile asbestos, other than trivial or de minimis exposure, occurring in a latency period of between 25 and 56 years, materially contributes to the cause of mesothelioma". Mr Booth relied upon, and Curtis DCJ accepted, the expert evidence of Professor Douglas Henderson (Professor of Pathology at Flinders University), Dr James Leigh (a consultant occupational physician), Dr Maurice Heiner (a consultant thoracic physician) and Professor William Musk (Clinical Professor of Medicine at the University of Western Australia). Writing extra‑judicially, Sir Owen Dixon described the three true functions of such witnesses as follows[95]:"First, to provide the court with the abstract knowledge which is requisite in order to understand and use the considerations which should determine its decision upon the scientific questions involved.Second, to collate and describe the facts, scientifically material, which the witness has obtained.Third, to state his own conclusions and opinions, and the grounds upon which he has formed them."[95]"The Law and the Scientific Expert", a paper delivered in 1934 and reprinted in Woinarski (ed), Jesting Pilate, (1965) 24 at 34.
Decision
Reasons for decision
FRENCH CJ
GUMMOW, HAYNE AND CRENNAN JJ
HEYDON J
The present case proceeds upon the foundation of findings, based on evidence before the primary judge, that Mr Booth's exposure to the chrysotile asbestos in brake linings manufactured by Amaca and Amaba not only prospectively increased the risk of his contracting the disease but, in the event, causally contributed to its development and continuation. Conclusion For the preceding reasons the appeals must be dismissed with costs. These appeals from the New South Wales Court of Appeal (Beazley, Giles and Basten JJA)[70] were heard together. The appellant in the first appeal ("Amaca") was formerly named James Hardie & Coy Pty Ltd. In 1962 it entered into a joint venture with a British company, Ferodo Ltd, and they became the shareholders in the appellant in the second appeal ("Amaba"), then named Hardie‑Ferodo Pty Ltd. However, no case has been presented to the effect that by reason of that relationship, Amaca is fixed with the tortious liabilities of Amaba.[70]Amaba Pty Ltd (Under NSW Administered Winding Up) v Booth; Amaca Pty Ltd (Under NSW Administered Winding Up) v Booth (2011) Aust Torts Reports ¶82‑079.The course of the litigation The first respondent, Mr Booth, was born in Sydney in 1937. Between 1953 and 1962, Mr Booth worked as a motor mechanic using brake linings which contained asbestos manufactured by Amaca. Between 1962 and 1983 (excluding the period from 1969 to mid‑1971 when he was doing other work), Mr Booth worked as a brake mechanic and was exposed to asbestos in Amaba products. He also worked with brake linings produced by other manufacturers but he estimated that about 70 per cent to 75 per cent of the brake linings with which he worked were the product of Amaca or Amaba. Many years later, in 2008, Mr Booth was diagnosed with malignant pleural mesothelioma, and he instituted proceedings in negligence against Amaca and Amaba in the Dust Diseases Tribunal of New South Wales ("the Tribunal"). He alleged, inter alia, failure by Amaca and Amaba to warn in respect of the use of their brake linings. The Tribunal is established, as a court of record, by s 4 of the Dust Diseases Tribunal Act 1989 (NSW) ("the Act"). Any evidence that would be admissible in proceedings in the Supreme Court of New South Wales is admissible in Tribunal proceedings (s 25(1)). The effect of s 3B(1)(b) of the Civil Liability Act 2002 (NSW) is that the provisions of Pt 1A, Div 3 thereof, headed "Causation" and comprising ss 5D and 5E, did not apply to the proceedings instituted by Mr Booth in the Tribunal. Accordingly, no reliance was placed by any party to this litigation upon that legislation. On 10 May 2010, the Tribunal (Curtis DCJ) entered judgment against Amaca and Amaba in the sum of $326,640[71]. The Tribunal found that both companies had "failed to discharge their duty to warn Mr Booth of the dangers of asbestos, and that it is because of this failure that he has contracted mesothelioma". No issue arises on these appeals of any apportionment between Amaca and Amaba; Mr Booth recovered judgment for the full sum.[71]Booth v Amaca Pty Ltd and Amaba Pty Ltd [2010] NSWDDT 8.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ,
GUMMOW, HAYNE AND CRENNAN JJ,
HEYDON J