Amaca Pty Ltd v King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0139
AMACA PTY LTD (Under NSW Administered Winding Up)	Appellant
v
ERIC KING	Respondent

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JUDGES	NETTLE, ASHLEY and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 December 2011
DATE OF JUDGMENT	22 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 447
JUDGMENT APPEALED FROM	[2011] VSC 422 (Kyrou J)

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NEGLIGENCE – Occupier’s liability – Asbestos cement sheet manufacturing plant – Duty of care – Known risk of asbestos dust causing mesothelioma – Whether magnitude of risk sufficient to require occupier to take reasonable care to protect occasional visitor from risk – Jury directions – Whether judge erred in directions as to existence and scope of relevant duty – Breach – Causation – Distinction between risk and causation – Motion for judgment non obstante veredicto – Whether judge erred in dismissing application – Whether sufficient evidence of causation to support verdict – Damages – Pain and suffering – Whether amount awarded by jury excessive – Awards previously made in like cases – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Watson SC and Mr G J Maloney	Thomsons Lawyers
For the Respondent	Mr R J Stanley QC and Mr P Over	Maurice Blackburn

NETTLE JA

ASHLEY JA
REDLICH JA:

This is an appeal against a judgment given in favour of the respondent for damages for personal injuries in the sum of $1,150,000. It was given following an eight day trial before a judge and jury of six members in the Common Law Division. The jury returned a unanimous verdict in favour of the respondent, to the effect that the appellant had by its negligence caused the respondent to suffer mesothelioma as a result of his exposure to asbestos dust and fibres at the appellant’s factory at Welshpool, Western Australia, in 1972.

The facts of the matter

The respondent is a married man, who at the time of trial was 62 years of age. He was born and raised in Subiaco, Western Australia. He left school after completing his leaving certificate and later qualified as a fitter and machinist.

In or about January 1972, he was employed by Sawyers Engineering at premises in Bentley, which is a suburb of Perth. He worked there, based in the machine shop, for a short period of approximately six months until in or about August 1972. Sawyers Engineering was in the business of steel fabrication and performed work for the appellant, then known as James Hardie & Coy Pty Ltd (‘Hardie’).

After leaving Sawyers Engineering, he worked successively as a machinist for a number of different employers located in Welshpool; then, from February 1974, as an instructor at the Outward Bound Sea School in Wales in the United Kingdom; then as a machinist in Durban in South Africa; and then for another period as an instructor at the Outward Bound Sea School in Wales.

In January 1976, he returned to Australia and was sent to Davis Station in Antarctica where he worked as a diesel mechanic for approximately 15 months. On his return to the Australian mainland, he worked as an instructor at the Outward Bound School in South Australia; then maintaining boats; and then again for the Australian Antarctic Division on Macquarie Island for a further year. Subsequently, he sailed with friends down the east coast of Australia, from Queensland to Tasmania, and settled in Kettering some distance from Hobart.

In 2000, he became a permanent employee of the Australian Antarctic Division in Hobart and, at the time of the trial, he was still an employee of that Division. His work involved the design and construction of mechanical, scientific instruments.

He gave evidence at trial that, during his time with Sawyers Engineering, he was asked to accompany two other Sawyers’ workers to a Hardie factory to remove a shaft from a piece of machinery and to bring it back to the machine shop at Sawyers Engineering in order to make a new one. He stated that to ‘his best belief now’ he went to the Hardie factory in the Perth suburb of Welshpool, not to another of the appellant’s factories at Rivervale.

He said that he and the other two Sawyer’s employees entered the factory and walked down what seemed to him to be an aisle or a corridor of machines which were in operation and producing what appeared to be asbestos sheet.

He said that he recalled climbing some stairs to the level where the relevant machine was located and that it was not in operation at the time. He estimated that the stairs were about the same height as the ceiling in the courtroom, and said that everything around him was grey in colour and that the factory was gloomy and appeared to be a dusty place. He could not recall being provided with any protective equipment or mask.

He was unable to identify the machine on which he had worked. His recollection, however, was that it was a large ‘table type of thing’, ‘about six feet by eight or 10 feet with six inch sides around it’, which was on a ‘slight angle’, and in which the base had multiple ‘perforations’, and that he was required to remove a shaft which vibrated the table. He said that it was dusty and that, where he worked on it, it was quite dusty, and he could see light reflecting off dust particles in the air.

In cross-examination, it was put to him that the machine on which he had worked was a table for delivering silica from a hopper to be dropped down into a ball mill. We interpolate that there was no evidence that the machine was of that kind. He replied that such a description of the machine did not assist his recollection. He agreed that he could possibly be wrong about the base having perforations. But, in re-examination, he reiterated that his best recollection was that it had perforations.

Mr Geoff Pickford, who was called by the appellant as an expert, gave evidence that, based on the description given to him by senior counsel for respondent, he could not recognise any such machine as a component in a Hardie factory or a Wunderlich factory. It emerged, however, that Mr Pickford had only ever attended the Welshpool factory once, and that was after he began employment with the appellant in 1977.

The respondent said that, when he first went to the factory, he was there for approximately two hours and he did not recall being given any warning or induction or meeting any staff of the factory. He explained that the other two Sawyers Engineering employees had been to the factory before and took him to the machine.

After this visit, he revisited the factory on two further occasions. On the second visit (which was a day or two after the first), he brought back the new shaft and assisted in fitting it. On that occasion, the factory had looked to be in the same condition as on the first occasion. He later returned to the factory for a third visit, with someone else, because the new shaft had not been machined correctly. Again, the factory seemed to him to be in the same condition as it had been on the earlier occasions. He estimated that he was in the factory during each of the second and third visits for approximately the same length of time that he had been in the factory during the first visit.

In evidence in chief, he said that he could not recall any exposure to asbestos apart from the three occasions on which he was at the Hardie factory in 1972. In cross examination, he conceded that he could have been around products containing asbestos or people working with materials made of, or containing, asbestos, and not known it.

The appellant tendered a document prepared in June 2011 by the Commonwealth Department of the Environment, Water, Heritage and the Arts, Australian Antarctic Division, which depicted the presence of asbestos in buildings at the Davis Station in June 2011. But the respondent said that he did not ever come across asbestos at the Davis Station that he was aware of.

Experts called by both sides agreed that there is a low background level of asbestos dust and fibres in all environments, with the level generally higher in urban environments than in rural environments; and that the respondent, like all people, would thus have had some background exposure to asbestos dust and fibres apart from any exposure to asbestos dust and fibres at the Hardie factory (conveniently, ‘the factory exposure’).

Diagnosis and treatment

In November 2010, the respondent was diagnosed as suffering from mesothelioma. He underwent a biopsy of the parietal pleura which was suggestive but not diagnostic of mesothelioma. On 30 November 2010, he underwent a right video-assisted thoracoscopic, pleural biopsy and talc pleurodesis which confirmed the diagnosis of right pleural mesothelioma. The pleurodesis was performed twice, because it did not take the first time. He was hospitalised for two and a half weeks and needed to take pain suppressant medication while the drain holes were healing. On discharge, he was drained and weak and had lost weight. He then underwent a course of chemotherapy at the Royal Hobart Hospital which involved five treatments over a period of 18 weeks. It left him with general tiredness and lethargy and made it hard for him to do any physical activities. He needed to take Ibuprofen, Paracetamol and Amytrityline for chest wall pain on a regular basis.

He was referred to see Dr Malcolm Feigen at the Radiation Oncology Centre at the Austin Hospital, Melbourne. Dr Feigen recommended intensity modulated hemithoracic radiation treatment. That occurred over a period of six weeks from July to August 2011.

Prognosis

The respondent had not returned to work since he was diagnosed as suffering from mesothelioma. At trial, he said that his level of activity since diagnosis had been greatly reduced and that he had not done the physical activities in which he had previously engaged since last year. Dr Feigen gave evidence at trial and was not cross examined. In Dr Feigen’s opinion, the respondent’s prognosis was that he would survive for nine months from August 2011.

Expert evidence as to causation and foreseeability

It is convenient to now give an outline of the expert evidence pertaining to causation and foreseeability of risk. Later, more must be said about this evidence.

At trial, the respondent called Dr James Leigh, a consultant occupational physician, Professor William Musk, a specialist in respiratory and occupational medicine, and Mr Michael Kottek, an occupational and environmental health expert.

Dr Lee and Professor Musk gave expert opinion evidence as to the state of medical science concerning the development of mesothelioma and its relationship to exposure to asbestos fibres, and also epidemiological and related opinion evidence as to the level of exposure to asbestos fibres which may ultimately result in the development of mesothelioma. Each of them expressed opinions to the effect that it was more likely than not that the factory exposure was a significant contributor to the causation of his mesothelioma or contributed to the development of the disease, or was a cause of it. Each man regarded the fact that symptoms of mesothelioma first appeared approximately 40 years after the factory exposure as a factor which was highly significant. The appellant challenged their opinions.

The appellant called three experts: Dr Ian Gardiner, a respiratory physician; Mr Geoffrey Pickford, an occupational hygienist; and Professor Geoffrey Berry, an epidemiologist and biostatistician. Dr Gardiner gave opinion evidence as to the state of medical knowledge concerning the development of mesothelioma and its relationship to the inhalation of asbestos fibres, as well as the phenomenon of background exposure to asbestos fibres (‘background exposure’). His opinion was challenged by the experts called by the respondent.

Mr Pickford expressed opinions as to the likely levels of asbestos fibres in the air at the Welshpool factory in 1972, and as to the probable cumulative dose of asbestos fibres there inhaled by the respondent. He said that he had based his opinions on the appellant’s records of air quality tests at the Welshpool factory from 1971 to 1977. He also referred to relevant Australian standards that were published by bodies such as the National Health and Medical Research Council (‘NHMRC’) in and around 1972. Mr Kottek challenged aspects of Mr Pickford’s methodologies and conclusions. The accuracy of the appellant’s air quality test records was also put in doubt. Several of the appellant’s own documents disclosed that there were considerable and continuing concerns about the accuracy of air quality monitoring at relevant times.

Professor Berry gave evidence of estimates which he had made of the relative contributions to the respondent’s risk of contracting mesothelioma from the factory exposure compared to the risk of him contracting mesothelioma from background exposure. His estimates were challenged. Among other criticisms made of them were that they depended on the validity of Mr Pickford’s opinion as to the likely level of the respondent’s factory exposure (and thus upon the accuracy of the appellant’s air quality records); and that they did not take into account the significance of the latency period of a little less than 40 years between the factory exposure in 1972 and his first manifestation of symptoms of mesothelioma in November 2010.

As to the foreseeability of risk, the respondent placed heavy reliance on the appellant’s own documents, of which further mention is made below. They included notes of a talk made by Dr McCullagh, the appellant’s then chief medical officer, to the managers of the appellant’s factories in 1966, at which he warned that recent literature had reported fairly conclusive evidence that asbestos dust when inhaled could cause lung cancer and cancer of the chest cavity lining and asbestosis; that any exposure to asbestos dust was dangerous and cumulative; that the absolute maximum should be no more than five years at 5 mppcf, but there was no known safe upper limit for exposure to asbestos; and that asbestos-related cancers were more associated with lesser exposure.

The appellant relied heavily on standards published by the NHMRC in and around 1972, which set an upper limit for exposure to asbestos higher than that which Mr Pickford said he estimated to have been the level of the factory exposure to which the respondent was subjected in 1972.

The conduct of the trial

During the trial, the parties agreed on a quantum of damages of $420,000 for all heads of damage other than pain and suffering and loss of enjoyment of life. The trial judge informed the jury of the agreement and of the amount agreed, and directed them that, if they found for the respondent on liability, they were to assess an amount for damages for pain and suffering and loss of enjoyment of life and deliver a verdict for that assessed amount plus $420,000. The jury were thus asked to decide two questions:

1. Was there negligence on the part of the Defendant which was a cause of the Plaintiff’s mesothelioma?

2. If yes to question 1, what is a fair and reasonable sum to compensate the Plaintiff for his mesothelioma?

On 30 August 2011, the jury returned a verdict for the respondent in the sum of $1,150,000, including the agreed amount of $420,000. It follows that the amount assessed for pain and suffering and loss of enjoyment of life was $730,000.

The non obstante veredicto application

In his statement of claim, the respondent pleaded that the appellant owed him ‘a duty to take reasonable care to avoid the risk of foreseeable injury’. In its defence, the appellant pleaded that it did not admit the duty. During the trial, the respondent amended his statement of claim but made no material alteration to the duty as originally pleaded. In its amended defence, the appellant denied that it owed the respondent the duty pleaded. In response to an inquiry by the judge as to the significance of the denial, counsel for the appellant said that ‘in ordinary circumstances some kind of duty is always owed by an occupier to an entrant’, but that the appellant did not owe the respondent a ‘relevant duty’. He added that it would have been meaningless to make an admission that the appellant owed a duty of care because the content of the duty of care would not apply to the circumstances of the respondent. He adumbrated that it would be the appellant’s case that the duty of care had to have meaningful content and precision and it would be inutile to make some sort of broad statement of duty. Counsel foreshadowed that if the evidence emerged as he anticipated, he would seek the trial judge’s leave to move for judgment after the jury’s deliberation ‘non obstante veredicto’.

Later, on the same day, the judge informed counsel that, subject to submissions that the parties might wish to make, he proposed to charge the jury on the basis that, as an occupier of the factory, the appellant ‘had a duty of care to entrants to that factory to take reasonable steps to avoid foreseeable risks.’ Counsel for the appellant took issue with the judge’s proposal and referred his Honour to a passage from the judgment of Gummow J in Vairy v Wyong Shire Council[1] in which his Honour said:

… if the primary issue of the content of duty of care is marked by a vague generalisation, the jury questions associated with breach tend to control the formulation … preservation and the separation of the conceptually distinct issues of duty and breach is, as this appeal shows, of general importance.[2]

Counsel submitted that the issues of existence of duty and content were legal questions for the judge and that the directions to the jury had to specify the content of the duty.

[1](2005) 223 CLR 422.

[2]Ibid 443–4 [64].

The judge said that he would finalise his views and that they would be reflected in the charge. He reminded counsel, however, that, if so advised, they could take exception to any aspect of the content of his directions, and he granted counsel for the appellant leave to move for judgment after verdict, non obstante veredicto. Later, he provided counsel with a document containing proposed legal directions.

Counsel for the appellant complained to the judge that the terms of the duty were too broadly stated in the document and did not give meaningful content to the duties relevant to the circumstances of the case. He further submitted that the direction failed to distinguish between the question of reasonable foreseeability at the point of determining the existence or content of the duty of care and at the point of determining breach. His Honour said that he would give consideration to the matters that had been raised.

After consideration, the judge instructed the jury concerning duty in the following terms:

In this case, as the occupier of the Rivervale or the Welshpool factory that Mr King visited in 1972, Amaca owed him a duty to take reasonable care to avoid exposing him to risks of injury in that factory which were reasonably foreseeable. The occupier’s duty to take reasonable care has many facets to it. The occupier is required to take reasonable care to provide reasonably safe premises. In the context of this case, it is not necessary to prove a catalogue or list of the aspects of an occupier’s responsibility.
What is significant in this case is that –
1.Amaca had a duty to take reasonable care to ensure that the state of the factory was safe; and
2.That duty extended to taking reasonable care to ensure that the activities carried on in that factory were safe.

Mr King must satisfy you on the balance of probabilities that –
1.Amaca failed to take reasonable care in providing a safe environment in the factory that he visited; and
2.Such a failure was a cause of his mesothelioma, or materially contributed to the mesothelioma.

The first requirement requires proof of negligence, the second requirement requires proof of causation between the negligence and the mesothelioma.
I will deal firstly with negligence and then causation. To determine whether an occupier has been negligent the test is an objective one. The duty owed is a duty of a reasonably prudent occupier. It is a duty to take reasonable care to avoid exposing visitors to the risks of injury which are reasonably foreseeable. That does not mean that the occupier must safeguard the visitor against all dangers that could conceivably arise. The touchstone is reasonableness, reasonable care.

His Honour then warned the jury against the temptation of being wise after the event or using the wisdom of hindsight knowing that the respondent had contracted mesothelioma. He continued:

The reasonableness of the conduct of Amaca as an occupier must always be tested having regard to what was reasonably foreseeable at that time, not in retrospect. That risk should not be judged by what an occupier would reasonably foresee today, knowing of Mr King’s mesothelioma, but by what a reasonable occupier in 1972 would have foreseen based on what was then known. Having regard to the principles that I have mentioned in relation to negligence, Mr King must satisfy you on the balance of probabilities that in 1972 –
1.Amaca should have reasonably foreseen that there was a risk of Mr King being exposed to asbestos dust and fibres as a result of his attending the factory to work on one of the machines over a short period.
2.Amaca should have reasonably foreseen that there was a risk of Mr King contracting a lung disease, such as mesothelioma, from such exposure.
3.Amaca with its knowledge and experience in 1972 did not respond to that risk as a reasonable occupier of the factory would have responded in 1972.

The first question then is whether a reasonable occupier would have foreseen that Mr King’s presence in the factory for a short period to perform maintenance work on the machine involved a risk of exposure to asbestos dust and fibres and that such exposure involved a risk of him contracting a lung disease such as mesothelioma.

His Honour then turned to consider breach of duty.

Following the jury’s verdict in favour of the respondent, the appellant’s counsel applied pursuant to the leave previously granted to set aside the jury’s verdict and have judgment entered in the appellant’s favour. As the appellant’s counsel appears not to have amplified his written submission in oral argument in support of the application, it is desirable to set out the relevant part of the written submission, as follows:

1.These submissions form the basis of an application that the jury’s verdict be set aside and a verdict and judgment entered for the defendant. There are two bases for the submission:
(a)There was no evidence that an injury of the kind suffered by Mr King was reasonably foreseeable as at 1972; and
(b)Causation cannot be established.

There are two aspects to this: medical causation and causation caused by the alleged negligence.
Reasonable foreseeability
2.The only evidence that went before the jury contradicted the existence of a foreseeable risk of injury as at 1972.
3.The question of the existence of a duty of care, and the determination of the content of the duty of care are legal questions, reserved for the judge. At the point of determining duty, it is a more exacting test than at the point of determining breach. At the point of determining the existence and content of the duty, the evidence must be sufficient to establish ‘whether it is reasonable to require a person to have contemplation of the risk of injury that has eventuated’: Kane v New South Wales (2002) 211 CLR 317, [12] (Gleeson CJ); see also Sydney Water Corporation v Turano (2009) 239 CLR 51, [45] (per the Court).

The submission then addressed the evidence on foreseeability and continued:

The issue here arises out of a casual visitor, likely only to have been temporarily present on the James Hardy (sic) premises. It does not involve a person likely to suffer prolonged exposure to asbestos, like a James Hardy (sic) employee or carpenter. There is no evidence to suggest that the plaintiff was, during his three brief visits to the premises, at any risk of an injury.

The remainder of the submission was devoted to the question of causation.

As can be seen, those submissions made no criticism of the judge’s formulation of the duty of care and did not otherwise take exception to any aspect of the judge’s charge. Unlike the submissions which counsel for the appellant had advanced earlier in the trial, when the judge had under consideration the directions to be given to the jury, the argument following verdict was relevantly confined to the question of reasonable foreseeability of risk of injury to the respondent.

On 31 August 2011, the judge ruled that the application should be refused. In his reasons,[3] his Honour set out the two bases for his refusal of the application. Both were within the confines of the submissions advanced in support of the application, and thus did not address the question of formulation of duty. His Honour stated that, in order for the application to succeed:

The defendant must establish that there was no evidence upon which a reasonable jury, properly directed, could return a verdict for the plaintiff.

His Honour then examined the evidence concerning reasonable foreseeability and concluded that there was evidence that:
The defendant knew or should have reasonably foreseen that there was a risk that persons such as the plaintiff that visited the factory would be exposed to asbestos dust and fibres as a result of attending the factory over a short period to work on a machine, and that there was a risk of contracting a lung disease such as mesothelioma from such exposure.[4]
[3]King v Amaca Pty Ltd [2011] VSC 422.
[4]Ibid [16].

Grounds of appeal

There are eight grounds of appeal, but counsel for the appellant argued a number of them in groups.

Grounds 1 to 3: Jury directions, duty of care and scope of the duty

Under the heading of Grounds 1 to 3, counsel for the appellant sought to return to matters which he had agitated during the trial prior to his Honour’s charge to the jury, but which he did not pursue at the time of the non obstante veredicto application. He reiterated that the appellant did not owe the respondent a ‘relevant duty of care’ and he contended that the judge had erroneously glossed over the task of defining the relevant duty in his directions by treating the respondent’s claim as one simply based upon occupier’s liability.

When, however, counsel was asked to state the terms in which he contended the judge should have directed the jury, he several times declined to do so. He argued that it was up to the judge to define the relevant duty – not the appellant’s or counsel’s duty – and it was sufficient to say that, however the duty ought properly to have been defined, the manner in which his Honour defined it was just too wide.

To say the least, that submission was unhelpful. Where an attack is made on a trial judge’s directions, the court expects counsel precisely to identify the direction which counsel contends should have been given and the respects in which it is said that the direction in fact given fell short of the required standard.

Counsel was asked again, therefore, to state the form in which he contended that the direction ought to have been given. He answered that the question in issue was whether the appellant owed the respondent a relevant duty of care; that it is ‘a question of whether it is reasonable to require a person to have contemplation of the risk of injury that has eventuated;’[5] and, consequently, that generalisations of duty based upon relationships such as occupier and entrant were apt to mislead the jury.
[5]Sydney Water Corporation v Turano (2009) 239 CLR 51, 70 [45].

It will be noted that no such exception was taken to the judge’s charge during the trial and that nothing of the kind was mentioned in the course of the non obstante veredicto application. That may be enough reason in itself to reject the contention. It seems to us that no exception was taken for the obvious reason that the content of the duty as formulated by the judge in his charge was appropriate. For the avoidance of doubt, however, we add the following.

We accept that the question in issue was whether the appellant owed the respondent a relevant duty of care. Over the last several years, the High Court has emphasised the importance of identifying the scope, extent and reach of a duty.[6] It is no longer enough to define an occupier’s duty to a lawful entrant merely in terms of reasonable care in relation to the physical state and condition of premises. It is necessary to determine whether an occupier owes an entrant a duty to take reasonable care to guard against the particular type of harm which befalls the entrant; although not necessarily the precise sequence of events leading up the injury.[7]
[6]Although, according to Fleming’s, The Law of Torts, 10^th Ed, at 124, thereby blurring the distinction between duty and breach.
[7]Sydney Water Corporation v Turano (2009) 239 CLR 51, 70 [46].

As we see it, however, the judge told the jury just that. In the passages from the charge to which we have referred, his Honour instructed the jury that the first question that would have to be resolved in the respondent’s favour, if negligence were to be found, was whether a reasonable occupier would have foreseen the risk that a person such as the respondent, who was only on the premises for a short period, would be exposed to asbestos dust and fibres and that such exposure involved a risk of him contracting a lung disease such as mesothelioma.

Those directions made clear that the relevant duty was one to take reasonable care to guard against a reasonably foreseeable ‘risk of [the respondent] being exposed to asbestos dust and fibres as a result of his attending the factory to work on one of the machines over a short period’ and thereby ‘contracting a lung disease such as mesothelioma from such exposure’. So far from ‘dismiss[ing] the complexities by treating the claim as simply one based upon “occupiers liability”,’ as counsel for the appellant submitted, his Honour emphasised the precise scope, extent and reach of the duty by directing the jury in terms that, in order for the plaintiff to succeed, they would need to be satisfied on the balance of probabilities that the appellant should have reasonably foreseen that there was a risk of the respondent being exposed to asbestos dust and fibres as a result of attending the appellant’s factory to work on one of its machines over a short period; the appellant should have reasonably foreseen that there was a risk of the respondent contracting lung disease, such as mesothelioma, from such exposure; and that the appellant, with its knowledge and experience in 1972, did not respond to that risk as a reasonable occupier of the factory would have responded in 1972.

Counsel for the appellant contended that the judge misdirected the jury as to the relevant duty of care by instructing them that:

the law says that a risk of injury which is quite unlikely to occur may nevertheless be foreseeable in the sense that its occurrence is not far fetched or fanciful.

As we understood that part of the argument, it was that, although the test for breach of duty posits that a risk which is quite unlikely to occur may yet be foreseeable if it is not far fetched or fanciful,[8] the test for the identification of the existence and scope of a duty is a ‘more exacting test’ of whether upon the evidence ‘it is reasonable to require a person to have in contemplation the risk of injury that has eventuated’.[9] Hence, it followed, it was said, that, by directing the jury as his Honour did, he led them to believe that the question whether the appellant owed the respondent a relevant duty was to be decided according to the less demanding test applicable to breach.

[8]The Council of the Shire of Wyong v Shirt (1980) 146 CLR 40, 45 (Mason J).

[9]Tame v New South Wales (2002) 211 CLR 317, 331 [12].

The argument is not persuasive. The question whether the appellant owed the respondent a relevant duty was a question of law for the judge.[10] It was his Honour’s task to determine whether it was reasonable that the appellant have in contemplation such a risk of injury. The only questions for the jury were breach, causation, and the measure of damage.[11] It was, however, necessary for the jury to be directed as to the existence and scope of the duty; for, without that, they could not determine the question of breach. By instructing the jury that it must consider whether a reasonable occupier would have foreseen that Mr King’s presence in the factory for a short period to perform maintenance work on the machine involved a risk of exposure to asbestos dust and fibres and that such exposure involved a risk of him contracting a lung disease such as mesothelioma, the trial judge provided appropriate instruction as to the existence and scope of the duty without need of further amplification or analysis.[12] The instruction that a risk that is not far fetched but is unlikely to occur may be reasonably foreseeable is unexceptionable and, read in conjunction with the balance of the direction on duty of care, involved no misdirection as to the scope of the duty.
[10]Swain v Waverley Municipal Council (2005) 220 CLR 517, 520 [4].
[11]Ibid 520 [6].
[12]Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, 262 [13] (Gleeson CJ).

As this case arose out of relationship of a kind in which the existence of the relevant duty of care is well established, and its nature is well understood, its existence and scope may be identified for the jury in the kind of terms adopted by the judge. Conceivably, it might have been different if the appellant had alleged a novel duty of care. That may have entailed consideration by the judge of whether it was reasonable to require a person in the position of the appellant to have in contemplation the risk of injury that eventuated. An exercise of that kind has been said to involve a more abstract and, in one sense, ‘undemanding’ test of foreseeablity,[13] but also more complex and far reaching considerations. According to current juridical conceptions of tortious liability, it requires the application of what is variously described as ‘principle and policy’,[14] ‘the totality of the relationship between the parties’,[15] a ‘fact-value complex’, ‘questions of fairness, policy, practicality, proportion, expense and justice’[16] and, in England[17] but not in terms in Australia,[18] the application of what is ‘fair, just and reasonable’.[19]
[13]Vairy v Wyong Shire Council (2005) 223 CLR 422, 446 [72] (Gummow J).
[14]Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, 29 [73] (McHugh J).
[15]Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 596 [145] (Gleeson CJ).
[16]Swain v Waverly Municipal Council (2005) 220 CLR 517, 548 [79] (McHugh J)
[17]Caparo Industries Plc v Dickman [1990] 2 AC 605, 618; D v East Berkshire Community Health NHS Trust [2005] 2 AC 373, 387 [24].
[18]Sullivan v Moody (2001) 207 CLR 562, 582–3.
[19]Vairy v Wyong Shire Council (2005) 223 CLR 422, 444 [66].

None of that, however, is of any significance in this case. It is well established that an occupier of premises owes a duty of care to a person lawfully upon the premises, in relation to the physical state and condition of the premises and in relation to activities on the premises, to take reasonable care to guard against reasonably foreseeable risk of physical injury resulting from the state or condition of the premises or those activities.[20] The basis of the duty is that the occupier ‘has control over and knowledge of the state of the premises.[21] The judge correctly directed the jury to that effect. No further or other analysis or direction on that point was required.
[20]Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, 488; Modbury Triangle v Anzil (2000) 205 CLR 254, 263 [17] (Gleeson CJ).
[21]Commissioner for Railways (NSW) v McDermott [1967] 1 AC 169, 186; Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234, 243 [24].

Sufficiency of evidence as to reasonable foreseeability of risk

Counsel for the appellant contended that, although there was evidence of a reasonably foreseeable risk of harm to long term factory workers exposed to asbestos dust on a sustained, regular recurrent basis, there was no evidence sufficient from which to infer the existence of a foreseeable risk of the asbestos dust causing injury to a visiting worker, like the respondent, who came to the factory on only three occasions and thus was exposed to asbestos dust for no more than a day in total. In effect, the contention repeated the argument advanced before the judge in support of the appellant’s non obstante veredicto application.

In his ruling on that application, the judge rejected the argument as follows:

The plaintiff relied primarily on documentary evidence on the question of whether the risk of his contracting mesothelioma from the factory exposure was reasonably foreseeable by the defendant in 1972. In particular, the plaintiff relied on the first two documents in Ex ‘P1’ which were created by the defendant in 1966. The evidence included comments by the defendant’s former chief medical officer, Dr McCullagh, that:
a)recent literature has reported fairly conclusive evidence that asbestos dust when inhaled can cause cancer of the chest cavity lining;
b)there is no safe upper limit for asbestos dust;
c)any exposure is dangerous and cumulative;
d)heaviest exposures cause asbestosis, lighter exposures cause cancer; and
e)it is almost inevitable that any lung cancer that develops in employees who have had even minimal exposure to asbestos will be classified by courts as compensation cases.

The plaintiff also relied on the evidence of the defendant’s expert respiratory physician, Dr Gardiner, who said that in the late 1960s, people with minimum exposure to asbestos, like carpenters, were deemed to be at risk of contracting mesothelioma.
The defendant relied on the publications and standards of the National Health and Medical Research Council (‘NHMRC’) that were current in 1972 (Ex ‘D1’). The NHMRC was then of the view that nearly all workers may be repeatedly exposed day after day to four asbestos fibres per cubic centimetre of air without adverse effect. In 1978, the NHMRC was of the view that limited usage of asbestos might be considered insufficient to cause harm to the health of those exposed. The NHMRC defined limited usage by reference to small users such as construction firms and insulation contractors who use less than five tonnes of raw asbestos per annum or who regularly use products such as asbestos cement building materials.
The defendant also relied on the evidence of its expert occupational hygienist, Mr Pickford, who said that neither he nor the industry knew that, by 1972, it was accepted that mesothelioma could be caused by a short-term and low exposure to asbestos.
Conclusion in relation to reasonable foreseeability
In my opinion, the jury was entitled to conclude that the defendant’s own internal documents that were created on or before 1972 were the best evidence of what the defendant knew in 1972. That evidence, and the evidence of Dr Gardiner, was more than sufficient to enable the jury to conclude that in 1972, the defendant knew or should have reasonably foreseen that there was a risk that persons such as the plaintiff that visited the factory would be exposed to asbestos dust and fibres as a result of attending the factory over a short period to work on a machine, and that there was a risk of contracting a lung disease such as mesothelioma from such exposure.

We agree with his Honour. In our view, there was substantial evidence in the form of the first two documents in Exhibit P1 that the appellant was at relevant times well aware of a significant risk that even minimal exposure to asbestos dust could result in asbestosis or mesothelioma. Those documents also implied that officers of the appellant had a considerably more developed insight into the disastrous effects of asbestos dust than did the NHMRC. Among the more significant aspects of the first two documents in Exhibit P1 were the following:

(1) In a memorandum of 16 February 1966 from the Personnel Manager to the Managing Director of the appellant:

…
The article is not new – it is merely one of many reports on world studies which have been conducted since 1935 when the association between exposure to dust and carcinoma of the lung, mesothilioma of the pleura, tumour of the bladder and uterus and other fatal complaints, was first recognised. The nucleus is dust particles – fibre.
Four types of asbestos – chrysolite, amosite, crocidolite and anthophylite have similar effects on the body and it has not been possible to establish that one is more pathogenic than the others.
There is no cure for Asbestosis.
Dust is measured in ‘microns’ – i.e. one millionth of a metre and 1500 microns would cover the head of a pin. It is mainly dust which is invisible to the eye, which does the damage. As asbestos is inert, chemicals won’t dissolve it out of the living tissue.
The only preventive action is to eliminate the presence of dust. Moving employees around between ‘dusty’ and ‘clean’ jobs is not necessarily effective. Some people seem to be affected more readily than others – the reason hasn’t yet been discovered…

(2) In an extract from notes of factory managers’ conference of 11 July 1966:

Dr McCullagh [the appellant’s then chief medical officer] made the following points:
a)   Recent literature has reported fairly conclusive evidence that asbestos dust when inhaled can cause lung cancer of the chest cavity lining [mesothilioma] as well as asbestosis.
b)   Weight of evidence linking asbestos with cancer is not as strong as case built up against smoking. Also it appears that asbestos dust at the worst is no more dangerous than smoking.
c)   There is no safe upper limit for asbestos dust…
d)     Any exposure is dangerous and cumulative. Absolute maximum should be no more than 5 years at 5 mppcf [million parts per cubic foot].
e)   Most dangerous particle size is up to 10 micron …
f)   Heaviest exposures cause asbestosis, lighter exposures cause cancer. Therefore, as dust levels reduce, more cancer will become apparent …
g)   Once asbestosis is confirmed no treatment available to arrest progress.
h)     Asbestos is now being suspected as an environmental pollutant in areas around factories which use asbestos.
i)    Main danger to people living within half a mile of source. Cases of cancer of chest lining shown to be more prevalent in these areas by studies in London and Finland.
j)    … It is inevitable that much tighter dust control will be insisted on.
k)   Almost inevitable that any lung cancer that develops in employees who have had even minimal exposure to asbestos will be classified by courts as compensation cases.

There were also observations recorded in others of the appellant’s documents which supported the conclusion that the risk of mesothelioma was foreseeable and indeed foreseen:

(1) In a memorandum of 22 May 1969 from the Manager of Research and Development:

…
It has been decided that the James Hardie upper allowable concentration of pollution as determined by the membrane filter technique will be 4 fibres per cc (fpcc).
Therefore the stations at Welshpool and Rivervale factories which still have dust or fibre concentration above the allowable limits as measured by the midget impinger and membrane filter are as follows:
[There followed a list of readings ranging from below or at 4 up to 64.3 and a recommendation that it was mandatory that all operators in the Blow Room and Tidemill should use an air flow type of dust mask].

(2) In a memorandum of 6 April 1970 from the Manager of Research and Development:

The results of the Industrial Hygiene survey carried out between the 9^th and 21^st February, 1970 are now to hand and have been entered on your permanent record sheets.
A report has also been prepared by Mr John Winters concerning this survey and a copy of this is enclosed.
As you can see the results are disappointing and many [stations] have dust levels well above the maximum allowable. This applies

particularly to the asbestos treatment plants both at Welshpool and Rivervale…

(3) In a memorandum of 11 August 1970 to Factory Manager:

I attach the results of dust sampling carried out at Welshpool and Rivervale during the month of July.
Deplorably high dust levels continue to exist at Welshpool and at Rivervale…

(4) In a memorandum of 6 November 1970 to the Factory Manager:

I attach the results of the monthly recounts for October 70. Please ensure that these figures, together with the corresponding remarks are entered on the appropriate permanent record sheets.
I should particularly draw your attention to the CM Building Asbestos Feeder [indecipherable] Station 31. In Jul 70 the count was 3.6 fibres per ml and in August [indecipherable]. In Sep the count rose abruptly to 8.9 and in Oct had risen even more steeply to 24.0. A situation once perfectly safe now has dust levels that are some five to six times greater than the safe upper limit and this appears to have occurred within a period of a few weeks…
At Rivervale the Flat Sheet Mixing Plant Tide Mill and Blow Room (Dust Stations 2R and 3R) maintain their improvement over the initial count – though they still need to be halved. Dust levels at the Flat Sheet Mixing Plant and Mix (Dust Station 1R) continued to exceed the safe upper limit by some five to ten times. It is hoped that concrete plans for the elimination of this antique complex will shortly emerge.

(5) In a paper headed Environment Control Committee submitted on 15 April 1971 to the Chief Executive Officer, among other members of the committee, that the dust levels at Welshpool as most recently ascertained had averaged between 187 and 277 fpcc, compared to the required standard of 4 fpcc.

(6) In a Report of the Medical & Hygiene Services of 1 June 1971, it was noted that the standard of 4 fpcc had been achieved at Welshpool to an extent of only 73% and that corrective action was required, some urgently.

(7) In an inter-house letter to the Branch Manager of Welshpool dated 18 June 1971:

In Feb 71 at Welshpool, 44% of dust sampling stations had counts of less than 4 f.cm^-3 – on the basis of the previous Total Survey and latest recounts only 23% of stations had achieved this goal.
In Feb 71 at Rivervale, 33% of dust sampling stations had levels below 4 f.cm^-3 – on the basis of the previous Total Survey and latest recounts only 4% had formerly achieved this level.
Nonetheless, as the above figures equally clearly show, there remains a great deal to be done – Western Australia is well behind other Branches in achieving control of its dust levels.

(8) In a progress report dated 14 June 1972:

…7% of James Hardie sampling stations have counts above 12 f.cm^-3 – and in one plant 20% of its stations were above this level. This is a level at which, in the UK, the Factory Inspectorate would require either that the situation be immediately rectified or that the operation be close down – and, incidentally, you would not be allowed to rectify the situation by putting the men in masks.
…
As you see things have improved but not dramatically – though there had, of course, been improvements not shown here between 1967 and 1970…
… In Perth and Auckland major expenditure is still required.
However, it is one thing to install well designed equipment. Its proper use and maintenance is another. We still too often see leaking duct work, blocked ducts, the careless emptying of collectors – this sort of thing is culpable negligence on the part of the foreman and supervisors and, since the responsibility is his, of the factory manager.
Recently a feeder was operated for weeks unconnected to the dust exhaust system and obviously unconnected – this is gross culpable negligence…

(9) In a report of September 72:

As to the incidence of asbestosis in our workforces there has been little or no change in the past year. We have learnt of a further five cases of lung cancer among our employees or former employees, two of which, I think, cannot properly be attributed to their asbestos exposure…

We do not overlook that there was some evidence the other way too. As the judge noted in his ruling, it included the view expressed in NHMRC publications current in 1972 that workers could be exposed repeatedly to four asbestos fibres per cubic centimetre of air without adverse effect; and a view expressed in NHMRC publications in 1978 that limited usage of asbestos might be insufficient to cause harm to the health of those exposed. Limited usage was defined by reference to small users such as construction firms and insulation contractors who used less than five tonnes of raw asbestos per annum or who regularly used products such as asbestos cement building materials. There was also the evidence of Mr Pickford (the expert occupational hygienist called by the appellant) that neither he nor the industry knew in 1972 that it had been accepted that mesothelioma could be caused by a short-term and low exposure to asbestos.

But, as the judge said, the jury were entitled to base their conclusions as to the appellant’s state of knowledge at the relevant time on the appellant’s own documents. And, if the jury did that, there was little reason for them not to conclude that the relevant risk was foreseeable and foreseen. NHMRC may not have comprehended the magnitude of the problem. But, according to the appellant’s own documents, the appellant knew considerably more about the risks of mesothelioma than NHMRC had to that point ascertained.

Counsel for the appellant called in aid two decisions of the New South Wales Court of Appeal and a decision of the English Court of Appeal as support for the proposition that the evidence in this case was incapable of sustaining an inference of reasonable foreseeability of relevant injury. The first was the decision of the New South Wales Court of Appeal in Seltsam Pty Ltd v McNeill.[22] It dealt with the question of whether a manufacturer of asbestos cement sheets was liable in negligence to a plaintiff who had worked with the sheets as a casual one-off home handyman in 1961 and as a result contracted mesothelioma, of which the symptoms first became apparent in 2003. The court found that there was insufficient evidence to establish that, in 1961, there was a foreseeable risk of injury to a one-off home handymen casual user of asbestos cement sheets. There was evidence of risk to health to ‘workers in factory situations in which manufacturing processes are applied to asbestos’. But the court found that it was altogether different in terms of degree of intensity of exposure to risk of inhalation of asbestos dust and fibres. It held that the case of foreseeability of injury to the class of persons of which the plaintiff was a member could not be conflated with cases of altogether different intensity of exposure. So, there was no duty.
[22][2006] NSWCA 158.

Counsel for the appellant submitted that the evidence of foreseeability of risk to the respondent in this case was even less compelling than the evidence in Seltsam and that the decision in Seltsam thus supported the conclusion, for which he contended, that it was not open to find that there was a relevant duty of care owed in this case.

We reject that submission, for three reasons. First, for the purposes of determining the standard of care required of the appellant, the question of what was and was not reasonably foreseeable was a question of fact. Accordingly, even if the evidence of foreseeability of risk in this case were not as compelling as the evidence of risk adduced in Seltsam, the decision in Seltsam could not be regarded as a precedent.[23]
[23]Swain v Waverley Municipal Council (2005) 220 CLR 517, 548 [79] (Gummow J); Fleming’s Law of Torts, 10^th Ed 124, n 6.

Secondly, Seltsam was an appeal from a decision of a judge sitting alone, whereas we are concerned with an appeal against a jury verdict. The principles which apply here are different.[24] Unlike the New South Wales Court of Appeal in Seltsam, it is not our task to decide as a question of fact whether the risk to the respondent was one that a reasonable manufacturer in the position of the appellant would necessarily have foreseen. Rather, it is to say whether the jury’s conclusion was not unreasonable and open on the evidence. And, as Mason J observed in Wyong Shire Council v Shirt,[25] in making that determination we are to keep in mind that the foreseeability of risk in the instant case is a question on which minds may well differ and not one which a judge is necessarily better equipped to answer than a layman.[26]
[24]Orr v Holmes (1948) 76 CLR 632, 640.
[25](1980) 146 CLR 40, 48–9.
[26]See too Swain v Waverley Municipal Council (2005) 220 CLR 517, 521 [6] (Gleeson CJ).

Thirdly, as we have stated, we consider that there plainly was evidence which left it open to the jury to find that in 1972 the risk of lung disease of the kind sustained by the respondent was reasonably foreseeable and indeed was foreseen by the appellant.

The second case was the decision of the New South Wales Court of Appeal in CSR Ltd v Amaca Pty Ltd.[27] It concerned a claim by the appellant for contribution in connection with asbestos cement sheets which the appellant manufactured during the late 1960s. In 1970 and 1971, the plaintiff – then a child – assisted her mother to clean up broken asbestos sheets which had been removed from the home in which she lived. She later contracted mesothelioma and sued the appellant in negligence. The appellant settled the claim and sought contribution from CSR Ltd, as the miner of the asbestos used in the manufacture of the sheets. To succeed in the claim for contribution, the appellant needed to show that CSR Ltd would have been liable to the plaintiff had she sued CSR Ltd in negligence. The appellant’s claim failed. The court found that there was no evidence capable of supporting a finding ‘at the appropriate degree of abstraction’ that it was reasonably foreseeable by CSR Ltd at the time of mining the asbestos that it involved risk to persons in the position of the plaintiff.
[27][2009] NSWCA 338.

Counsel for the appellant invoked the decision as support for the proposition that, just because there was a known risk to asbestos mine workers and men involved in the manufacture of asbestos cement products, it did not follow that there was reasonably foreseeable risk of injury to persons in the position of the respondent.

We accept that contention as far as it goes. But, in the end, we do not think that it goes very far. It provides little if any support for counsel’s submission that there was not enough evidence in this case to support the jury’s finding that it was reasonably foreseeable to the appellant that there was a risk of causing the respondent lung disease of the kind which he sustained. Like Seltsam, CSR Ltd v Amaca Ltd turned on its own facts and, among other differences between those and the facts in this case, it was concerned with CSR Ltd’s state of knowledge in the 1960’s whereas we are concerned here with different evidence of the appellant’s state of knowledge at a later time in the 1970s.

The third case was the decision of the English Court of Appeal in Williams v University of Birmingham.[28] There, a university undergraduate suffered mesothelioma as a result of exposure to asbestos during speed of light experiments in university premises. Aikens LJ, who delivered the principal judgment, said:

In the context of the present case, I would formulate the test for whether the University was negligent and in breach of duty in the following manner. Ought the University reasonably to have foreseen the risk of contracting mesothelioma arising from Mr Williams’ exposure to asbestos fibres by undertaking the speed of light experiments in the tunnel in the manner contemplated – and done in fact – to the extent that the University should (acting reasonably) have refused to allow the tests to be done there, or taken further precaution or at the least sought advice.[29]

[28][2011] EWCA Civ 1242.

[29]Ibid [35].

Counsel for the appellant argued that his Lordship’s formulation of negligence accorded with the law in this country and that, when applied to the facts of this case, demonstrated that the appellant in this case could not have been in breach of any duty of care which it owed the respondent. As counsel put it, on any realistic view of the evidence it could not possibly be thought that the extent of risk to exposure known to the appellant as at 1972 was such as reasonably to require that the appellant shut down its plant.

In our view that is not so. His Lordship’s formulation of negligence recognises that shutting down problematic premises is not necessarily the only way in which a foreseeable risk of harm may reasonably be prevented. It was upon a similar basis that this case was conducted and decided.

Finally, on this aspect of the matter, counsel for the appellant submitted that it would have been very difficult for the jury to eliminate the application of hindsight or to consider matters without focussing upon the fate of the respondent, thus distorting the exercise, and that no one could reasonably have foreseen in 1972 the risk of an occasional visitor like the respondent being injured as he was.

We have dealt already with the question of whether it could reasonably have been foreseen in 1972 that an occasional visitor to the appellant’s plant would be so exposed to the risk of mesothelioma or other lung disease as a consequence of asbestos dust as to require that the appellant take reasonable care to guard against the risk. As to whether the jury would have been able to exclude the effects of hindsight and put out of their minds the suffering of the respondent, there are three further points to be made. First, authority recognises, and our experience bears out that juries abide by directions.[30] Secondly, in this case, the judge gave the jury a direction in the clearest possible terms that they were to not approach any aspect of the issue of duty of care with the wisdom of hindsight and that the reasonableness of the conduct of the appellant as an occupier had to be tested having regard to what was reasonably foreseeable at the time; not in retrospect. Thirdly, the appellant has not identified anything, apart from the fact that it is dissatisfied with the verdict, which suggests that the jury’s decision was other than the result of acting in accordance with the judge’s directions.
[30]Dupas v The Queen (2010) 241 CLR 237, 246 [26].

Given that there was evidence in the appellant’s own documents that it knew at relevant times that inhaled asbestos dust could cause cancer of the chest cavity lining; knew that there was no safe upper limit for asbestos dust; knew that any exposure was dangerous and cumulative; knew that lighter exposures caused cancer; and knew that it was almost inevitable that any lung cancer that developed in employees who had even minimal exposure to asbestos would be classified by courts as compensation cases, the appellant’s case before the jury amounted in the end to saying that the jury should not regard the risk of cancer as sufficiently serious to have required that the appellant do something about protecting visitors from it. There was no deficiency in the evidence. This aspect of the appellant’s argument was a revivification of the submission as to the existence and content of a relevant duty of care which had been made to the trial judge before the jury was given directions, but which was not repeated in the non obstante veredicto application.

The appellant alternatively submitted that even if the appellant had warned visitors of the risk and offered them a mask, there was no reason to suppose that the respondent would have accepted the mask or that it would otherwise have made any difference. To adopt and adapt the language of Gleeson CJ in Swain v Waverley Municipal Council,[31] faced with a plaintiff dying of mesothelioma, that was a strong line to take in the absence of evidence to show that a warning and the offer of a mask would not have improved overall safety. In those circumstances, the jury’s response to the appellant’s case was neither irrational nor surprising.
[31](2005) 220 CLR 517, 526 [19].

Causation
The grounds summarised

Grounds 4–7 raise the issue of causation in different ways.

Ground 4 contends that there was no evidence capable of causally linking the breaches of duty which were particularly relied upon at trial with the respondent’s contraction of mesothelioma.

Ground 5 complains that the judge misdirected the jury by not providing ‘any or any adequate directions as to the necessity’ of such linking evidence.

Ground 6 contends that the judge erred ‘by failing to enter a judgment in favour of the appellant or by failing to direct a verdict for the appellant’ upon what is described as ‘the issue of medical causation.’ The basal point raised is that neither the medical evidence nor the evidence as a whole permitted a finding that the respondent’s exposure to asbestos fibres at the appellant’s plant was a cause of him contracting mesothelioma.

Ground 6A attacks a ruling by the judge that pertinent two medical witnesses called by the respondent be allowed ‘to give opinion evidence at to whether the appellant’s asbestos caused the respondent’s injury.’

Ground 7 is expressed as a alternative contention – that is, that the jury erred in finding causation. It is an alternative to Ground 6, because it returns to the alleged unavailability of evidence capable of establishing causation.

Some uncontroversial circumstances

By the time that the jury came to consider their verdict the following circumstances were either common ground, or else the jury was well-entitled to find them as facts:

(1)The respondent, aged 62 at time of trial, suffered from pleural mesothelioma.
(2)The disease became symptomatically evident in 2010 and was diagnosed in November that year.
(3)Pleural mesothelioma is a disease which in the overwhelming majority of cases is caused by exposure to asbestos fibres, including both chrysotile (white asbestos) and amosite (brown asbestos) fibres.
(4)Whilst it may be the case that some mesotheliomas are caused by exposure to something other than asbestos fibres, no other agent was implicated in the respondent’s case.
(5)The respondent entered the appellant’s factory at Welshpool on three occasions in 1972. He did so in order to repair, in his work as a fitter and turner, a machine on the premises. In all, he worked at the premises for about six hours.
(6)The appellant did not provide the respondent with a protective face mask for use when working at the premises. The respondent was exposed to, and did inhale, asbestos fibre–containing dust. The asbestos fibres were in the ratio of approximately 80 per cent chrysotile and 20 per cent amosite.
(7)The respondent was not exposed to inhalation of asbestos fibres in any other employment during his working life.
(8)It appeared that the respondent at one time lived in quarters in which asbestos was present. But there was no evidence that the respondent had been exposed to inhalation of asbestos fibres when living at that accommodation.
(9)Much of the respondent’s adult life had been spent in rural environments.
(10)There is an environmental risk of inhaling asbestos fibres – so-called ‘background exposure’. The risk is more pronounced in an urban environment. Very, very rarely, background exposure has been implicated as the cause of a person developing mesothelioma.

Stopping at this point, it was inescapable that the jury would reason –

(1) that the respondent’s mesothelioma was attributable to inhalation of asbestos fibres; and

(2) that the only identified potential causes of his disease were –

(a) his exposure at the appellant’s factory; or

(b) background exposure; or

(c) a combination of the two exposures – one known and one presumptive.

Trial by experts?

The question then became whether, on consideration of all the evidence, the jury was satisfied that the respondent had established causation by route (a) or (c) – in the latter case by establishing that factory exposure in breach of duty materially contributed to the contraction of the disease. We say ‘consideration of all the evidence’ because the submissions for the appellant often seemed to imply that the respondent’s case required probability as adjudged by a medical witness, and that in the absence of such probability the respondent’s case must fail. That is not so. Consideration of the entirety of a plaintiff’s case may persuade the tribunal of fact that a sufficient causal link is established although expert medical witnesses gave evidence in the language of possibility only. As Gobbo J observed in Dahl v Grice,[32] there is –

the obvious danger that an expert when asked to provide an opinion as to whether a causal link exists may do so in terms of scientific proof that may be altogether too exacting for the degree of satisfaction necessary in a legal proceeding.

[32][1981] VR 513,

A jury was summoned to try the facts in the trial. As Kirby J observed in Naxakis v Western General Hospital,[33] the jury became the ‘constitutional tribunal’ to resolve disputes of fact. Their resolution of those disputes required consideration of all the evidence in the case. Inferential reasoning was permissible, and potentially important. The jury’s function would only be taken from them if, in accordance with authority, the judge directed a verdict for the defendant. In a jury trial, that is a rare occurrence, as Naxakis illustrates both as a matter of principle and on its facts.[34] It is implicit in our reasons, see later, that the judge would have been wrong to so direct.
[33](1999) 197 CLR 269, 287 [53].
[34]See particularly, as to principle, ibid 291–294, [62]–[68] (Kirby J).

In Amaca Pty Limited (under NSW Administered Winding up) & anor v Booth,[35] Gummow, Hayne and Crennan JJ said that –
[35][2011] HCA 53.

For a long period, matters of cause and consequence were said to be questions of fact for decision by the jury…hence the attraction in saying that questions of cause and consequence are to be decided by the jury applying ‘common sense’ to the facts of each particular case. The invocation of the ‘common sense’ of the jury discredited judicial directions containing theoretical analysis and exposition.[36]
[36]Ibid [65] (citations omitted).
…
Further, the absolute defence of contributory negligence, as Mason CJ put it in March v Stramare (E & M H) Pty Ltd, provided a fertile source of confusion in the development of the common law. His Honour added:
"The existence of the defence, as well as the absence of any mechanism for apportionment of liability as between a plaintiff guilty of contributory negligence and a defendant and as between co‑defendants who were concurrent tortfeasors, was a potent factor in inducing courts to embrace a view of causation which assigned occurrences to a single cause. So long as contributory negligence remained a defence, the adoption of this approach was more likely to produce just results."[37]
[37]Ibid [66] (citations omitted).

and
…this reasoning has lost some of its force with the decline in many jurisdictions in the trial by jury of civil actions, and the removal of contributory negligence as an absolute defence. Further, many issues of causation, including those recently considered in Lithgow City Council v Jackson and those which arise on the present appeals, lie outside the realm of common knowledge and experience. They fall to be determined by reference to expert evidence, for example, medical evidence.[38]
[38]Ibid [67] (citations omitted).
and
Even if the issue is one to which other disciplines may not be able to give any conclusive answer, questions of causation, as a step in the ascertainment of rights and the attribution of liability in law, call for sufficient reduction to certainty to satisfy the relevant burden of proof for the attribution of liability. In Tubemakers of Australia Ltd v Fernandez, Mason J, with the concurrence of Barwick CJ and Gibbs J, referred to a statement by Dixon J as elaborating the general onus which lies upon the plaintiff where the issue of causation lies outside the realm of common knowledge and experience. In Adelaide Stevedoring Co Ltd v Forst, Dixon J said:
"I think that upon a question of fact of a medical or scientific description a court can only say that the burden of proof has not been discharged where, upon the evidence, it appears that the present state of knowledge does not admit of an affirmative answer and that competent and trustworthy expert opinion regards an affirmative answer as lacking justification, either as a probable inference or as an accepted hypothesis." (emphasis added)[39]
[39]Ibid [69] (citations omitted).

The ‘but for’ criterion of causation proved to be troublesome in various situations in which multiple acts or events led to the plaintiff's injury, for example, where the development of a particular medical condition was the result of multiple conjunctive causal factors. In such cases what may be unclear is the extent to which one of these conjunctive causal factors contributed to that state of affairs. These situations have been addressed by the proposition stated by Lord Watson in Wakelin v London and South Western Railway Co that it is sufficient that the plaintiff prove that the negligence of the defendant ‘caused or materially contributed to the injury’. In that regard, reference may be made to the well‑known passage in the speech of Lord Reid in Bonnington Castings Ltd v Wardlaw. Of that case it was said in the joint reasons in Amaca Pty Ltd v Ellis:

"The issue in Bonnington Castings was whether exposure to silica dust from poorly maintained equipment caused or contributed to the pursuer's pneumoconiosis, when other (and much larger) quantities of silica dust were produced by other activities at the pursuer's workplace. Those other activities were conducted without breach of duty. As Lord Reid rightly pointed out, the question in the case was not what was the most probable source of the pursuer's disease: dust from one source or the other. The question was whether dust from the poorly maintained equipment was a cause of his disease when the medical evidence was that pneumoconiosis is caused by a gradual accumulation of silica particles inhaled over a period of years." (emphasis in original)[40]

[40]Ibid [70] (citations omitted).

Booth was heard at first instance by a judge sitting alone. As the plurality observed, trial by jury of civil actions for damages is now in decline in Australia. But there is a right to such a trial in personal injuries cases in Victoria, and that right was exercised in this case. The judge was not persuaded, on application by the appellant, that the matter was one in which he should direct trial without a jury,[41] and no complaint is now made in that connection.
[41]See King v Amaca Pty Ltd [2011] VSC 433 and Rule 47.02(3) of Chapter 1 of the Rules.

Correlating the passages in Booth cited above with the principles set out in Naxakis, the jury’s task was to decide the disputed issues of fact on consideration of all the evidence. Consistently with the passage in the dissenting judgment of Dixon J in Adelaide Stevedoring Co Ltd v Forst,[42] cited by the plurality in Booth, the jury was authorised, having considered all the evidence, to return a verdict for the respondent so long as – (1) the present state of medical knowledge admitted of an affirmative answer in his favour, or (2), ‘competent and trustworthy expert opinion’ regarded an affirmative answer as not lacking justification as a probable inference, or at least as ‘an accepted hypothesis’.
[42](1940) 64 CLR 538, 569.

Nothing in what Dixon J said – his Honour expressed it in largely negative language, which we have converted into largely positive language – requires ‘competent and trustworthy’ expert opinion to state an affirmative answer upon a disputed fact as a matter of probability before the tribunal of fact is authorised to decide, on all the evidence, that the plaintiff has established that fact as a matter of probability. In a jury trial, we add, it will be a matter for the jury whether a particular expert should be characterised as both competent and trustworthy.

Ground 4

Counsel for the appellant submitted, pursuing Ground 4, that the respondent fell at a hurdle even before there was consideration of the critical question which we identified at [83] above. His argument, implicitly if not expressly, assumed that the jury was entitled to conclude that that the appellant owed the respondent a duty of care of the kind described by the judge, and that the factory exposure was causative of the respondent’s mesothelioma. He submitted, however, that there was no evidence to link negligent factory exposure with the respondent’s mesothelioma. He argued that there was no evidence of what warning should have been given, or whether the respondent would have responded to it. In any event, nothing called for any warning to be given. Nor was there any evidence that, had a face-mask been provided by the appellant, the respondent would have worn it. The respondent’s evidence that he would have worn a mask, had one been provided, in response to a warning about risk to health, was attended by problems.[43] Still further, there was no evidence that wearing a mask would have reduced the risk of the respondent suffering a disease of the kind which he contracted. Indeed, there was a little evidence to the contrary.
[43]Counsel cited the observations of McHugh J in Chappel v Hart (1998)195 CLR 232, 246, n 64; and of Callinan and Heydon JJ in Vairy v Wyong Shire Council (2005) 223 CLR 422, 484 [226].

In our opinion, Ground 4 should be rejected.

We first note that the submissions made in this Court were not the same as the submissions made below. In closing address, counsel for the appellant submitted that – (1) any warning would have been of a risk of injury which was so small that no one would have taken any notice of it; (2) no one would have provided a mask to a short-term visitor, because the risk of injury was so small; (3) there had been no opportunity to give a warning or provide a mask because the respondent entered the premises and went straight to the machine without speaking to a Hardie employee; and (4), a mask and a warning could not have made any difference. The matter last-mentioned was a throwaway line.

It is not the case that a party can simply conjure up new arguments on an appeal which were not placed before the tribunal of fact for its consideration.

Second, the arguments advanced below depended upon – (1) the risk of the respondent contracting an asbestos-related cancer by short-term exposure being very small; and (2), the respondent having gone to the work-site without encountering any Hardie employee. But the jury was entitled to conclude by reference to the appellant’s own documents, that the risk was not as small as the appellant contended. Moreover, the risk was potentially of catastrophic injury – an asbestos-related cancer.

Third, we consider that it was well-open to the jury to conclude that, in 1972, it was possible for the appellant, with its knowledge of conditions in the factory, and its knowledge of the serious risks to health by reason of even short asbestos exposure, to devise and provide to persons entering the factory a warning which crisply advised of the pertinent risk, and what should be done to alleviate it.

Fourth, in light of the risk as the jury was entitled to characterise it, the jury was entitled to reason that the appellant’s argument that the respondent encountered none of its employees on the way to his place of work was true, but damning. There was evidence, we add, that the respondent had to pass by a security gate on his way to the work site. The jury might well have concluded that it would not have been beyond the wit of a reasonable occupier and employer to staff the gate with an employee who was able to give a health safety warning and provide a mask to a contractor entering the site, particularly when the period of the visit, and whether there would be repeat visits, was not set in stone.

Fifth, the respondent swore that, had he been given an appropriate warning, and had a face mask been provided, he would have worn it. He gave an explanation why he would have done so. It is true that such an averment should be treated with caution. But the jury was not prohibited from accepting his evidence, and they evidently did so.

Sixth, the appellant’s argument that there was no evidence that a mask, if worn by the respondent, would have reduced the risk of the respondent suffering a disease of the kind which he in fact contracted ran counter to the fact that in and before 1972 the appellant was providing masks for use by its own employees. Indeed, its managers expressed concern that employees were not wearing them.

It was said for the appellant before us that the masks were only being supplied to users in high-exposure areas. Even so, the jury was well-entitled to reason that the respondent believed, on good grounds, that the masks then available did reduce exposure, and so reduce the prospect of a person contracting asbestos-related disease. The submission of appellant’s counsel that there was a little evidence that masks ‘were an ineffective device to avoid this kind of exposure’ was not borne out by the evidence to which he referred.

Ground 5

This ground fails because, contrary to the appellant’s argument in this Court, there was evidence of the matters referred to in Ground 4. It fails also because the arguments here advanced were not co-terminous with the arguments advanced below, and because the judge gave an unexceptional charge upon the case as it had been presented. In addition to directions in point of principle, the judge’s summary of counsel’s final address faithfully replicated the arguments which counsel had advanced.

Ground 6A

This ground was added, by leave and with the respondent’s consent, on the morning of the appeal.

The appellant submitted that Dr Leigh and Professor Musk should not have been permitted to express an opinion whether the respondent’s exposure to asbestos at the appellant’s factory caused his mesothelioma. That was because – (1) causation is a legal construct; (2) the witnesses did not rely upon an understanding of biological causation, so they must have been giving opinion evidence about a matter outside their discipline;[44] (3) the witnesses were giving evidence as to the ‘ultimate issue’, which is forbidden at common law, and which was not made admissible by s 80 of the Evidence Act 2008; (4) the witnesses did not reveal the basis for their opinions.
[44]Counsel cited HG v The Queen (1999) 197 CLR 414, 429 [44] (Gleeson CJ) and Dasreef Pty Ltd v Hawchar (2011) 85 ALJR 694. See 704-706 [30]–[43];

Counsel for the respondent submitted that – (1) underlying Ground 6A was the broad and radical proposition that a qualified medical practitioner cannot give opinion evidence as to causation in a personal injuries case; (2) there is no rule at common law which prevents a qualified medical practitioner from giving evidence about the causation of injury;[45] in any event, s 80(a) of the Evidence Act 2008 permits evidence as to an ultimate fact to be given; (3) each of Dr Leigh and Professor Musk gave evidence as to the factual assumptions underlying his opinion; (4) their reasoning process was based upon their respective training, study and expertise; and (5), there was evidence from which the jury was entitled to infer – contrary to the submission for the appellant – that the machine on which the respondent did work was used in an asbestos-related process.
[45]Counsel cited Murphy v The Queen (1989) 167 CLR 94, 110, 127 and R W Miller & Co Pty Ltd v Krupp (Australia) (1991) 34 NSWLR 129, 130.

The witness was asked about his approach to determining whether in particular there is a causal relationship and exposure to asbestos. He said this:

Well you look at the precise diagnosis of the disease, whether it truly is mesothelioma, you look at the history of exposure to asbestos as recalled and estimated by the scientists, you look at the latency from that history and see whether it's consistent with what is – what is known about the latent – the typical latency of this disease. Then if you have mesothelioma you have an asbestos exposure history, and taking into account the fact that in my view the consensus of authoritative scientific opinion is there is no threshold, i.e. there's no minimum level that you can't get mesothelioma from, then I would say that given – given a history, given the disease, given the latency, I would say that that mesothelioma was caused by that exposure. I mean you can argue down to the very, very low – I'll use a legal term, I'm not – not supposed to, but de minimis term to perhaps say you will pass that wall there, and it might have had some asbestos in it, and it's been painted over four times, and you just walk past it, and possibly if I put a sampler there and ran it for three weeks, and sampled an enormous volume of air, you might in fact detect one asbestos, some very, very low level of asbestos. That – that is that issue, what is the absolute minimum, and is that any more than background, and I would then say even – even if there was a minimum there, a small – small amount, it would have at least added to the background, and so it would have increased the total risk, and it would have played some small part

Speaking of the respondent’s case, the witness said this:

Well in my opinion it's more likely than not that the exposure in the Hardies factory made a significant contribution to the causation of this man's disease.
Why do you say that?---Because mesothelioma is only caused by asbestos, he had asbestos exposure, therefore it's most likely that this mesothelioma was caused by this asbestos exposure, and it was not a trivial asbestos exposure. It was, you know, qualitative heavy, although for a quite short time, by comparison with other cases that I’m experienced with, it was not the lowest …

Cross-examined, the witness said, inter alia –

I believe that in an individual case, all fibres of all types at any time point [to] exposure having something to do with the process of development of the mesothelioma.

There was this question and answer:

One thing that we do know is that not all fibres to which an individual was exposed could have participated in the cause?---I like to think of it as, um, you have a lot of fibres and you have a lot of cells and you can't say for certain which fibre interacted with which cell or which fibre did, um, produce which chemical change with the data interacting with the cell. I like to think it was more as a - a probabilistic process, if you like, in that the more fibres and the more cells, the more chance you have of a fibre interacting with a particular cell so, you can't say which one did what to which but you can give all sorts of, um, everyday analogies and the one I like to use and have used before is, um, um, defensive military position in the First World War just firing machine guns with no particular aim, just firing them on a fixed pattern against a whole - hundreds of thousands of advancing troops that are no particular fixed position. Some of those - some of those men are going to get killed by a bullet, you know. Unless you - unless you had identified each individual bullet in some way you can't really say which gun killed which soldier but you can say that the - the more fire that the defensive side is putting out, the more likely they are to kill people. Similarly, you can say from the point of view of the attacking side, um, the more - the more of them there are against the fixed number of guns, well the less - the more likely it is that some of them might get through. That's the sort of probabilistic analogy, if you like, of fibre cell interaction that must go on and indeed, must go on in - in most - most biological processes. You've got to think the body's - the cells are tiny little things. There's millions and millions of them and even blood cells moving down - down a vessel you don't know where any one particular cell is but you do know that the blood in general is moving a certain way. You don't know when you form a clot and you think you don't know which cells are actually doing it but you know that the more clotting cells there are, the more likely you are that the wound will be healed so, you know.

We should refer also to these questions and answers:

… we know from experiments of various types at cellular level, animal level, tissue level, human tissue level that the fibres can act at the very early stage of the development when the - the cancer is initiated into becoming a potentially - a cell with potentially damaged DNA that will start to divide into, ah, altered cells which ultimately, ah, become cancer. It can - the fibres can act at later stages where several of these chains of mutations have already happened some years after the initial exposure, for example, when they can affect the chemical factors which cause these altered cells to multiply. They can affect the chemical factors which cause these altered cells to be themselves clear because they're a further defence mechanism apart from the fibres being removed in the first place. These altered cells – sometimes the body detects this is an altered cell and says it has to be removed because it may become ultimately a cancer cell – we'll remove it as a process of apoptosis. This happens down the track. Fibres have been shown to affect this process so, ah, fibres have been shown to, you know, affect the production of chemicals which, ah, attract - attract other cells, ah, to the cancer. Fibres have been shown to affect genes that, um, produce, um, suppression of the, um, the ligament process - the further dividing of the damaged cell. Fibres can act at all stages of the process therefore, all the fibres in the lung must be doing something to the overall causation of this mesothelioma.
Is that the cumulative effect?---Yeah, that's the cumulative effect.
So, applying it to Mr King's case, if one has, as he had, actual asbestos exposure on top of the - whatever environmental or background exposure he had - what do you say as to the involvement in the cause of the mesothelioma of the additional exposure?---Well, it's adding significantly to the causal process and it's having an affect in the causal process significantly.

We turn to the evidence of Professor Musk. The witness described the way in which asbestos fibres cause mesothelioma this way –

It is thought that [asbestos fibres] are such a problem because (1) they are very long and thin so they enter the airspaces of the lung according to the diameter of the fibre, but because they're long they can't get taken up by macrophage because they are longer than the macrophage can take into its cell to remove. And so in the process the - the macrophage dies and or gets injured and releases substances which may result in the production of asbestosis or ultimately cancer. The other thing about asbestos fibres apart from their physical shape is their durability. The reason they are so good and they have been so valuable in industry is they're very durable. The most durable fibres are the blue asbestos fibres, and they don't dissolve in the macrophages that take them up. They just stay there and cause damage. So that the two properties, the two main properties, are their physical dimensions and their durability.
…The longer they stay there the more damage gets done, and so the damage mounts up. So the risk of developing mesothelioma particularly increases as time goes on. There's very few cases of mesothelioma within the first ten or 15 years after breathing the asbestos fibres. But then after that the risk of developing mesothelioma increases at a great rate, at least until 40 or 50 years after the - the asbestos has been breathed.

Professor Musk also said this about the process of development of mesothelioma:

It occurs for as long as there is asbestos in the lungs. We know that asbestos fibres do clear. White asbestos clears faster than brown asbestos and brown asbestos clears faster than blue asbestos. In our studies of the Wittenoom people who were exposed to blue asbestos, the clearance of fibres from the lungs occurs at about ten per cent of the burden every year. So at the end of every year there's 90 per cent of the total burden still there, and so that goes on and they never clear completely. And it seems that the longer they are there the greater the risk of developing mesothelioma.

There were later these questions and answers:

Well if we can return to Mr King and your opinion, can I take you back again to your report, and the second last paragraph on the second page? You went onto say, ‘The evidence indicates that when a person has had discrete episodes of exposure to and inhalation of asbestos dust over and above any background exposures, the cumulative exposure, including the background exposures, contribute to the risk of developing mesothelioma, and therefore contribute to the mesothelioma development’. Is that your opinion?---Yes.
You then go onto say that all exposures, more than ten to 15 years before the occurrence of mesothelioma contribute, contribute to the mesothelioma?---Yes.
I'll read what your report says, and you can tell us whether you agree or not. ‘Earlier heavier exposure to amphibole varieties of asbestos, especially chrysotile contribute more to the risk of developing mesothelioma than later lighter periods of exposure to chrysotile. But all exposures, more than ten to 15 years before the occurrence of mesothelioma, contribute’. Is that your opinion?---Yes.

We should refer also to these questions and answers:

…you were being asked whether in your opinion Mr King's attendance at the Hardies factory as you had it described to you back in 1972, was a cause of him contracting mesothelioma? What's your answer?---Well I think that the exposure contributed to his risk of developing mesothelioma, and therefore if one takes the next logical step, it contributed to the development of his mesothelioma.

The witness was cross-examined about what might be called the ‘one fibre’ theory:

are you saying that you could say with certainty that some particular exposure to asbestos fibres on a particular day were actually causal, as opposed to increasing the risk?---No, I'm not saying they're causal, we don't know which – which particular fibre caused it. We don't know whether it was fibres that Mr King might have inhaled as part of his everyday life. That's background exposure, or fibres that he inhaled during these particular jobs that have been described.
These things are presently unknowable on the state of the medical science, do you agree?---Yes.
If we get down to even the most basic level, I wrote down a particular phrase you used, in describing one theory you said then – and this is a quote, ‘One or more cells become cancerous’. The state of medical science is this, is that we don't even know whether the cancer is triggered from a single cell or numerous cells, or whether it is necessary that there be numerous cells involved, am I right?---Yes, I don't think we know, but you're asking the wrong person, that's no my area, and I wouldn't want to get involved in deeper discussions on that because I don't have the knowledge.
You're too modest. The fact is that you're part of group with the leading researchers in this country, with Professor Robinson and Professor De Klerk and yourself professor, isn't that right?---Yes.
Do you agree with this, that as you understand the literature, even today we don't know whether the cancer is triggered by a disruption in a single cell, or whether numerous cells are involved, or whether we need to have numerous cells involved, is that right?---That's true, that's true.

It is then necessary to refer to this passage in cross-examination:

what I say, accepting that in general, any exposure will contribute to his – his total dose of asbestos and the timing of it’s important and the sort of asbestos he is exposed to is also important. So any exposure will have made some contribution, the amount of the contribution would depend on those factors.
Well that takes me to the next subject I was going to ask you about. Mr Stanley read out to you parts of your report. When you speak there of contribution, you’re talking about a contribution to risk. Is that right Professor? ---Yes.
Because no one can know, you can’t know, whether particular fibres at James Hardie, caused the mesothelioma, is that right?---Yes.
So we must be talking about risk not cause; do you agree?---Yes.

We consider that this can be said, following upon our review of the evidence of Dr Leigh and Professor Musk.

First, whilst Professor Musk, in particular, accepted that one could not say ‘which fibre’ caused a mesothelioma, neither witness supported the ‘one fibre’ hypothesis – that is, that mesothelioma can be caused by a single fibre, so that the extent of the asbestos load in the lungs is an irrelevance.

Second, Dr Leigh described the detrimental impact of multiple asbestos fibres in the aetiology of mesothelioma.

Third, it is clear that in expressing his opinion as to causation, Dr Leigh considered, and treated as important, the respondent’s occupational history and the latency period.

Fourth, Dr Leigh opined that, although one could not say which fibre initiated the disease process, and although he could not say that the respondent would not have developed mesothelioma had he not had the factory exposure, all fibres which were inhaled and not expelled had a contributory role to the development of the mesothelioma. He explained why he held that opinion, describing a long-developing process.

Fifth, although Professor Musk equated risk with cause at several points in his evidence, he stated that the total dose and the timing, as well as the type of asbestos involved, was important in the particular case, the respondent having contracted the disease.

In all, we do not accept the appellant’s submission that the opinions of the two witnesses merely addressed risk. To the contrary, their opinions gave consideration to the particular features of the respondent’s case – which included the only competing explanation for his disease and the latency period.

Counsel for the appellant submitted, in reply, that the latency period was without significance because the respondent was subject to the background risk in 1972. Leaving aside the fact that there was no cross-examination to that effect, and that the contention was not put to the jury in counsel’s final address, the argument would have invited the jury to conclude that it could not be satisfied that the definite factory exposure in 1972 was a cause of, or materially contributed to, the mesothelioma, and that background exposure at that time was equally likely to have been causatively relevant – even though such background exposure produces only a tiny risk of mesothelioma even over a person’s entire lifetime. Such a submission would have been less than persuasive; and it was not persuasive when raised in this Court.

We must finally address appellant’s submission (7) – that is, that the relative risk of the respondent contracting mesothelioma by reason of the factory exposure was so low by contrast with the risk faced by background exposure that an inference of causation was impossible.

There is, we consider, a short answer to the submission. First, it was for the jury to evaluate the reliability of Mr Pickford’s evidence, upon which Professor Berry’s calculations were founded. Second, Professor Berry’s calculations were in the abstract to the extent that they ignored the potential significance of the latency period; and the jury was entitled to conclude that they were, when all the evidence was considered, less than persuasive.

We should say just a little more about Mr Pickford’s evidence as to the respondent’s likely cumulative dose of inhaled asbestos fibres when at the factory. It was expressed in fibre per ml years, and was based upon certain readings taken by personal samplers in 1974 and 103 counts made by static samplers at different places in the factory between 1971 and 1977.

The material upon which the witness made his calculations was supplied to him by the appellant’s legal advisers at the last moment, when it had become clear that the respondent had attended the Welshpool, not the Rivervale, factory.

The witness’s professional qualifications were not in dispute. But his objectivity was attacked, as was the relevance and reliability of the material which underpinned his conclusions.

The witness agreed in cross-examination, inter alia, that -

(1) Each one of a number of identified errors in his report favoured the appellant.

(2) He had previously described the estimation of exposure by the static sampler method as ‘usually very [bad]’.

(3) On the figures which he had provided, things at both Welshpool and Rivervale were ‘going along quite well’ in 1970. That must have been, we interpolate, by extrapolation backwards from the conclusion which he reached as to the situation at Welshpool in 1972.

(4) The test results for 1977 favoured the respondent, because the dust situation was then worse than in 1972. But then the witness explained that the testing methods in 1977 produced an ‘artificial increase’ by contrast with the methodology which was earlier used.

The witness, having agreed with the proposition noted at (3) above, was confronted with good deal of written material generated by the appellant. It permitted a conclusion that between 1966 and 1972 the extent of asbestos contamination at the factory was high even by the threshold which the appellant adopted, and arguably that it was higher than readings suggested.[58]
[58]At Welshpool, in late 1972, observations were made of ‘loose asbestos scattered everywhere’; and a process was described which appeared to be very dusty, but which non-comprehensive sampling did not show to contain ‘dangerous concentrations’. At Rivervale, there was an implicit assertion by the chief medical officer that sampling results had been ‘doctored’.

The witness quibbled with language used to describe the dustiness of the Welshpool factory in the period up to and including 1972. For instance, he said that he would have described dust levels at a particular station as ‘totally unsatisfactory’, and not, as the appellant’s then chief medical officer reported, ‘deplorably high’.

The jury might well have regarded Mr Pickford’s evidence as partisan, particularly as he appears to have exhibited a confrontationist approach at times during cross-examination. On the other hand, he stated, with respect to another station (this time at Rivervale), that he ‘would probably have gone further and closed down the process’.

The jury might also have concluded, in our view, that the point which the witness made about changing methodology, noted at [165](4) above, told against the his estimate of the respondent’s exposure. It permitted, we consider, the jury to reason that the sampling noted up to late 1972 produced an artificially low result, rather than that the methodology used in later years produced an artificial increase.

We have mentioned that Mr Pickford’s impartiality was put in issue, and have mentioned some matters upon which respondent’s counsel relied in that connection. The jury, and the judge, each saw and heard the witness. That seems likely to have been a distinct advantage. In ruling upon the non obstante veredicto application, the judge said this:

The jury was also entitled to form the view, as I did, that Mr Pickford was not a neutral witness. He came across as an apologist for the defendant. In particular, his answer in re-examination – that the documents that indicated that dust samples were unreliable did not cause him to doubt the accuracy of his assessment of the plaintiff’s factory exposure, but, in fact, caused him to believe that his estimate was probably too high – was devoid of any credibility.[59]

[59]King v Amaca Pty Ltd [2011] VSC 422, [28].

Finally, respecting causation, we should say something very briefly about Amaca Pty Ltd v Ellis and others[60] and Merck Sharp & Dohme Pty Ltd v Peterson,[61] two cases relied upon by counsel for the appellant in his causation submissions. On analysis, neither of them assists the appellant.
[60](2010) 240 CLR 111.
[61][2011] FCFCA 128.

Ellis involved a claim for damages in respect of lung cancer. The plaintiff sought to implicate asbestos exposure as a cause of his disease. His claim failed in the High Court. In Booth, French CJ and the plurality explained why Ellis was not in point.[62] The same distinguishing circumstances are present in this case.
[62]Amaca Pty Limited etc v Booth [2011] HCA 53, [40] (French CJ), [71] (Gummow, Hayne and Crennan JJ),

In Peterson, the plaintiff claimed that he had suffered a heart attack in consequence of taking the drug Vioxx. The trial judge found for the plaintiff on the issue of causation. The Full Court of the Federal Court disagreed with that finding. It analysis of what is required in proof of causation, and why the plaintiff failed, was very detailed. But its framing of the issue really explains why it arrived at its conclusion:

The case against Vioxx was circumstantial: there was no medical ‘signature’ for Vioxx which might indicate that Mr Peterson’s heart attack was caused by Vioxx. In finding the circumstantial case against Vioxx proved, the primary judge relied upon a theory as to a psychological mechanism which might explain the operation of Vioxx in the body to produce an occlusion of the vasculature, and upon statistical evidence bearing upon the extent of the risk of harm from Vioxx in the population at large.[63]

[63]Merck Sharp and Anor v Peterson [2011] FCAFC 128.

In short, the plaintiff failed because – by contrast with the evidence adduced in this case - the evidence did not permit a conclusion, as a matter of probability, that ‘consumption of Vioxx was a necessary condition of [the plaintiff’s] heart attack’.[64] Epidemiological evidence, relied upon by the plaintiff as part of his circumstantial case, did not much advance it, because matters personal to the plaintiff provided a ready explanation for the heart attack independent of his consumption of Vioxx.[65]
[64]Ibid [120]–[126].
[65]Ibid [113].

Ground 8 – Damages

Under the heading of Ground 8, counsel for the appellant contended that the award of $730,000 damages for pain and suffering and loss of enjoyment of life was so high that no reasonable jury properly instructed and with all due attention to the evidence could arrive at it.[66] He referred to two decisions in support of the contention. The first was that of the New South Wales Court of Appeal in Simon Engineering (Australia) Pty Ltd v Brieger.[67] It concerned an appeal against the quantum of damages awarded by a judge sitting alone in a case in which the plaintiff had suffered mesothelioma as a result of his employment. Among other heads of damage, the judge at first instance awarded general damages of $85,000 for pain and suffering and loss of amenities of life. Clarke JA, who delivered the principal judgment, held that $85,000 was too much and should be reduced to $60,000. His Honour said that:

[The trial judge] allowed the sum of $85,000 for this component of the damages and in my opinion this is excessive. There is no doubt that the respondent suffered a staggering blow in June 1989 and that he has since suffered enormously. He has been subjected to severe pain and has been required to submit to treatment which has imposed severe stress upon him. He has also lived under the shadow of impending death and this, in itself, is a most significant matter. His life, it must be accepted, was a misery for the twelve months prior to trial and his situation will deteriorate for the rest of his life. However, this element of a damages award provides compensation only for the pain, suffering and loss of amenities suffered by him for the period until the date of trial and for the rest of his expected life. In this case his life expectancy was found to be about four and a half months. On that basis the award is to cover those aspects for a period of slightly less than eighteen months. This, it is accepted by both counsel, is in accordance with established principle and involves compensation for an area of damages quite distinct from any award in respect of loss of expectation of life. I am afraid that despite my sympathies for the plight of the respondent I am unable to agree that the relevant losses, notwithstanding that his suffering is great, for a period of only eighteen months should command an award in the order of that made by the trial judge.
This aspect of the appeal has caused me great concern for while I am conscious of the extreme suffering undergone, and likely to be undergone, by the respondent the shortness of the duration of that suffering must have a severe impact upon the amount of the award. In this case my concern has been lessened to a degree by the approach of the appellant's counsel. In his written submissions he submitted that the award should be reduced by a factor of at least 25 per cent and in his oral argument urged the court to award only $60,000. In these circumstances it seems to me that I should adopt the submissions of counsel for the appellant and award $60,000.

[66]Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594, 596 (Sholl J).

[67][1990] NSWCA 165.

The second decision was of Corboy J in Lowes v Amaca Pty Ltd,[68] in which his Honour undertook a survey of damages for pain and suffering and loss of enjoyment of life awarded in the Western Australia Supreme and District Courts and in the New South Wales Dust Diseases Tribunal. They included the following:
[68][2011] WASC 287.

(a)Easther v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd):[69] a 67 year old plaintiff with mesothelioma: general damages $130,000; loss of life expectancy $15,000;
[69][2001] WASC 328.
(b)McGilvray v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd):[70] a 54 year old plaintiff with mesothelioma; general damages $160,000: loss of life expectancy $15,000;
[70][2001] WASC 345.
(c)Misiani v Welshpool Engineering Pty Ltd (in liq):[71] a 54 year old plaintiff with mesothelioma; general damages $150,000: loss of life expectancy $15,000;
(d)Ellis, Executor of the Estate of Paul Steven Cotton (Dec) v The State of South Australia:[72] a 43 year old plaintiff with lung cancer: general damages $150,000; loss of life expectancy $15,000;
(e)Hannel v Amaca Pty Ltdl:[73] a 64 year old plaintiff with mesothelioma: general damages $180,000; loss of life expectancy $15,000;
(f)Kirkpatrick v Babcock Australia Pty Ltd:[74] a 61 year old plaintiff having an illness of approximately 2½ years duration and uncertain prognosis; treatment included a thoracotomy, a pleurectomy, chemotherapy and radiotherapy; general damages, $250,000;
(g)Mooney v Amaca Pty Ltd:[75] a 59 year old plaintiff having endured symptoms for 4½ years; treatment included chemotherapy; general damages, $290,000;
(h)Roberts v Amaca Pty Ltd:[76] a 64 year old plaintiff was 64 years having endured symptoms for 4 to 5½ years; treatment included chemotherapy; general damages, $275,000;
(i)Booth v Amaca:[77] a 70 year old plaintiff having endured symptoms for approximately two years; no history of surgical or other medical intervention referred to in the judgment; general damages, $250,000;
(j)Parkinson v Lend Lease Securities and Investments Pty Ltd:[78] a 72 year old plaintiff having endured symptoms for approximately six years; surgical intervention and radiation and chemotherapy; general damages, $300,000;
(k)Wall v Cooper:[79] pain syndrome suffered after leg wound became infected and skin grafting broke down. Severe and excruciating pain not abating with time. Plaintiff forced to cease work and left with a 'very limited existence' and dependence upon on heavy doses of morphine based painkillers. $450,000 for general damages.[80]

[71][2003] WASC 263.

[72][2006] WASC 270.

[73][2006] WASC 310.

[74][2009] NSWDDT 4.

[75][2009] NSWDDT 23.

[76][2009] NSWDDT 28.

[77][2010] NSWDDT 8.

[78][2010] ACTSC 49.

[79](2006) 43 SR (WA) 69.

[80]Appeal dismissed: Wall v Cooper [2008] WASCA 53.

For present purposes, we do not find either case to be particularly persuasive. The problem with Brieger is that it is now over 20 years old. In that time, a lot has changed. Apart from anything else, the minimum wage, average weekly earnings and average annual earnings have almost tripled and the remuneration paid to some members of society, such as, for example, chief executive officers of publicly listed corporations, has increased from a couple of hundred thousand dollars per annum to millions of dollars per annum with added bonuses and incentives of more millions of dollars. Of course, an award of damages for loss of enjoyment of life and pain and suffering is not to compensate for loss of earnings or earning capacity. We do not suggest that there is any necessary relationship between earnings and the measure of compensation appropriate for pain and suffering. But inasmuch as contemporary society pays and receives vastly greater amounts of remuneration than that of a generation ago (even allowing for inflation)[81] and, at the same time as it seems to us, writes and speaks of the importance of the quality of life to an extent not before contemplated, who doubts that modern society may place a higher value on the loss of enjoyment of life and the compensation of pain and suffering than was the case in the past?[82]
[81]Cf Lee Transport Co Ltd v Watson (1940) 64 CLR 1, 14 (Dixon J).
[82]Cf Joyce v Pioneer Tourist Coaches Pty Ltd [1969] SASR 501, 503 (Bray CJ); Luntz, Assessment of Damages for Personal Injury and Death, 4th Ed, [7.1.5].

The problem with Lowes v Amaca Pty Ltd is that, as Corboy J observed, apart from statutory modifications, the determination of whether an award of general damages is manifestly excessive or inadequate ‘is not a matter to be resolved by reference to some norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases’.[83] In Western Australia, there is a relevant statutory modification. Section 10A(1) of the Civil Liability Act 2002 (WA) provides that, in determining damages for non-pecuniary loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings and that for that purpose the parties to the proceedings or their counsel may bring the court's attention to awards for damages for non-pecuniary loss in those earlier decisions. That is not so here. Section 28HA of the Wrongs Act 1958 (Vic), which enables the court to refer to other decisions for determining damages for non-economic loss, does not apply to proceedings for asbestos-related injuries.[84] The upper limit on non-economic loss damages similarly does not apply.[85]
[83]Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 124–5.
[84]Wrongs (Part VB) (Dust and Tobacco Related Claims ) Regulations 2006.
[85]Wrongs Act 1958, s 28G.

Admittedly, as far as we know, there has never before in this State been an award of damages of as much as $730,000 for loss of enjoyment of life and pain and suffering in a mesothelioma case. But, proportionately, the amount awarded in this case appears to accord with jury verdicts in previous cases. In Rabenalt v Midalco,[86] which was tried in 1988, the plaintiff was 52 years of age at the time of trial and was awarded compensatory damages of $426,000.[87] Allowing that a significant part of the award may have been referable to damages for economic loss, it is probable that the sum awarded for loss of enjoyment of life and pain and suffering was many times more that the $60,000 awarded by the New South Wales Court of Appeal in Brieger two years later. In Crimmins v Stevedoring Industry Finance Committee,[88] which was the last mesothelioma case to go to verdict in this State - in 1998 - the plaintiff was nearly 62 years of age at the time of trial and was awarded damages of $833,000. He had been unable to work for about a year before trial. Allowing for the plaintiff’s age in that case, and thus the relatively small amount likely to have been awarded for loss of earnings, it is probable that the amount awarded for pain and suffering and loss of enjoyment of life exceeded $500,000.
[86]The appeal is reported at [1989] VR 461.
[87]As well as exemplary damages of $250,000.
[88]The appeal to the High Court is reported at (1999) 200 CLR 1.

Moreover, over the last 10 to 20 years, awards of damages have increased significantly; not just in personal injuries cases, but also in other areas of litigation. For example, last year a jury in this State awarded a barrister more than $600,000 in damages for defamation[89] and that amount seems not to have been regarded as unreasonable.
[89]Hore-Lacy v Cleary and Allen & Unwin Pty Lt (Unreported, Supreme Court of Victoria, 22 March 2010 (verdict) ).

So to say is not to suggest either that there is a necessary relationship between the sum which a jury might regard as reasonable compensation for damage to reputation and the amount which a jury would think sufficient to compensate for loss of enjoyment of life and pain and suffering. It is relevant to observe, however, that the High Court has laid down that damages awarded in personal injuries cases are capable of providing some guidance to a court of appeal in considering whether an award of damages for defamation is excessive. In Coyne v Citizen Finance Ltd,[90] Mason CJ and Deane J said that it would be ‘quite wrong’ for an appellate court entrusted with hearing appeals in both defamation and personal injuries cases to be indifferent to the need for a rational relationship the scales of values applied in the two classes of case; and, in Carson v John Fairfax & Sons Ltd,[91] Mason CJ and Deane, Dawson and Gaudron JJ endorsed that approach. Logically, that sort of reasoning works both ways.
[90](1991) 172 CLR 211, 221.
[91](1993) 178 CLR 44, 58–9.

At all events, it appears that damages awarded by juries in cases of defamation are capable of providing us with at least some guidance as to the reasonableness of the amount awarded in this case for loss of enjoyment of life and pain and suffering. And we bear in mind too that the law today is not ‘more jealous of a man’s reputation than of his life and limb’.[92]
[92]McCarey v Associated Newspapers Ltd [No 2] [1965] 2 QB 86, 109 (Diplock LJ); Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 58.

We acknowledge that there is a significant gap between sums which appear to have been awarded by judges in other states for pain and suffering damages for mesothelioma and the sum awarded by the jury in this case – and, very probably, in their day, by the juries in Rabenalt and Crimmins. Part of the difference, however, is explicable on the basis of different statutory regimes. As has been seen, in this State there is no statutory mandate for referring to other decisions in order to determine damages for non-economic loss the result of asbestos-related injuries, and the upper limit on non-economic loss damages does not apply. There is also the possibility that judges ‘continue to apply past precedents even after … ‘’large and relatively permanent” changes have occurred’.[93] Juries of course do not.
[93]Luntz, Assessment of Damages for Personal Injury and Death, 3^rd Ed, [7.1.7].

Given the considerations to which we have referred, and bearing in mind that judgments about damages are not to be overborne by what other minds have judged right and proper for other situations,[94] we are not persuaded that the sum of $730,000 for pain and suffering and loss of enjoyment of life which the jury awarded in this case is beyond what a reasonable jury properly instructed and with all due attention to the evidence could arrive at.
[94]Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118, 125.

Conclusion

It follows that the appeal will be dismissed.

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[2011] VSCA 447

22 December 2011