Barnes v Exxon

[1998] HCATrans 130

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S89 of 1997

B e t w e e n -

DAVID BARNES as Administrator Ad Litem of the Estate of the late ROGER KEITH BARNES

Applicant

and

EXXON LTD

Respondent

Office of the Registry
  Sydney  No S90 of 1997

B e t w e e n -

DAVID BARNES as Administrator Ad Litem of the Estate of the late ROGER KEITH BARNES

Applicant

and

JSEKARB PTY LTD

Respondent

Office of the Registry
  Sydney  No S91 of 1997

B e t w e e n -

DAVID BARNES as Administrator Ad Litem of the Estate of the late ROGER KEITH BARNES

Applicant

and

BENDIX MINTEX PTY LTD

Respondent

Applications for special leave to appeal

BRENNAN CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 1998, AT 10.11 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR M.J. JOSEPH, SC and MR M.L. BRABAZON for the applicant in each of those three matters.  (instructed by Oates & Smith)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR G.M. WATSON, for the respondent, Jsekarb Pty Ltd in matter No 90.  (instructed by Allen Allen & Hemsley)

MR C.R.R. HOEBEN, SC:   May it please the Court, I appear for the respondent, Exxon, with my learned friend, MR I.R. PIKE.  (instructed by Middletons Moore & Bevins)

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR R.A. DICK, for the respondent, Bendix Mintex Pty Ltd.  (instructed by Barker Gosling)

BRENNAN CJ:   Mr Jackson.

MR JACKSON:   Thank you, your Honours.  Your Honours, make I deal first with the issue and then go on to the other matters.  The issue in these applications we have endeavoured to set out in the application book at page 112, paragraph 1 of our submissions.  It is, in our submission, an important question on the content of causation - and perhaps I could use the term generically for the moment - in cases where the defendants’ conduct increases the risk of suffering the injury which gives rise to the action in circumstances where so too may the conduct of other persons who may or may not be parties to the proceedings and, your Honours, where the medical knowledge prevents one from identifying precisely what actually caused the injury.

Your Honours, the issue arises typically in mesothelioma cases where there have been successive exposures to the asbestos fibre and where medical knowledge does not permit one to say which fibre or fibres caused the mesothelioma to develop or whether the increase in the load, if I can use that expression, of asbestos assisted in the development of tumours or merely increased the number of potential sites for development.  Your Honours, where we have sought to indicate perhaps a little more precisely what is contemplated by that is in our submissions in reply in paragraphs 4, 5 and 6 at page 2.

Now, your Honours, there is a significant body, in our submission, of judicial opinion in support of the view for which we would contend that in such circumstances a material increase in the risk of injury is sufficient to attract liability.  Your Honours, that may be seen most recently dealt with in a decision of the Supreme Court of California, delivered after the decision in this case, in Rutherford v Owens-Illinois, Inc 941 P 2d 1203, a decision last year. Your Honours, can I take your Honours to the relevant passage which commences at page 1217 and goes through to page 1219.

Your Honours, the passage commences at the bottom of page 1217, and the court at the bottom of that page stated a fundamental reason why there should not be a burden-shifting to the defendant in asbestos-related cases, but goes on to say that the reason why that is unnecessary becomes clear - this is at the top of page 1218:

when the limits on the plaintiff’s burden of proof on causation are properly understood.

Their Honours then go on to deal with the difficulties as applicable to this case as to that case in the medical evidence.  Could I refer your Honours to the whole of the next paragraph, and then towards the end of that paragraph to the possible legal answers that might be given.  That is then elaborated upon in the next paragraph.  The hunting accident in Summers, your Honours, is two people with shotguns, fire at the same time; a third person receives a pellet in the eye, and the pellet cannot be identified as belonging to either of them.  Both are liable.

Your Honours, their Honours discussed the question throughout the remainder of the - - -

BRENNAN CJ:   In this case, is the evidence to be regarded, as found by the courts below, as establishing that the mesothelioma was caused by a single fibre of unknown origin?

MR JACKSON:   No, your Honour, it is not quite that.  What is known is that the mesothelioma is caused by asbestos fibre. Now, your Honour, whether the mesothelioma can be regarded as caused directly, as it were, by one fibre or by a combination of them, or by one fibre assisted by the presence of the others, is something that cannot really be worked out.  The state of medical knowledge does not enable us to say that.

What one can say is that there is evidence to the effect that I have just said - and I will take your Honours to it in just one moment - that every exposure to asbestos fibre matters because it is impossible to say which exposure caused the - - -

BRENNAN CJ:   Correct me if I am wrong but I understood that what was found below was that there were several sources of asbestos fibre of different kinds but that on the whole of the evidence the mesothelioma in this case was caused by a fibre of naval origin.  That is not so?

MR JACKSON:   No, your Honour.  No, no.  Your Honour, that is not, with respect, correct.  Your Honour, I do need to come in just a moment to the question of the suitability because your Honour’s view, with respect, is one that may be influenced by what we would describe as, if I can use an Australianism, “a furphy” contained in our learned friends’ submissions with which we have endeavoured to deal in our submissions in reply.  The position was, your Honour, that the Navy ultimately was not relevantly a party that could be held liable.  There was no doubt there was a possibility, and perhaps to some degree a strongish possibility, that the service in the Royal Navy and exposure to asbestos may have been a cause, may have been, if one knew everything, the cause, but it was a possible cause.     So, too, were the other employments or other contacts with asbestos in relation to which the respondents were concerned.

Now, your Honours, the question that ultimately arises is this:  in circumstances where one is unable to say which exposure caused directly the mesothelioma, if it be right to say that the mesothelioma is caused by only one exposure - that is the difficulty with medical knowledge - your Honours, the test for which we would contend is that the evidence demonstrated that the exposure by each materially increased the risk of the injury and that that is, in circumstances of this kind, sufficient, and that is the view that was adopted in the United States in the case to which I am in the course of referring.

Your Honours, could I just say then - I am sorry, in an endeavour to cut short what I am saying about that case - if one goes to page 1218 in the right column, about point 3 on the page, their Honours refer to the fact that:

Not uncommonly, plaintiffs have been unable to prove direct exposure to a given defendant’s product.

And then your Honours will see, at the bottom of that page, the last paragraph, that:

The burden of proof as to exposure is not disputed in this case.  Even with the jury instruction at issue, plaintiffs bore the burden of proof on the issue of exposure to the defendant’s product; plaintiffs do not complain of that burden -

then, their Honours say, the next paragraph, the next page, page 1219, about a third of the way through that paragraph in the left column:

Plaintiffs cannot be expected to prove the scientifically unknown details of carcinogenesis, or trace the unknowable path of a given asbestos fibre.  But the impossibility of such proof does not dictate use of a burden shift. 

Meaning by that a shift to the defendant which the trial judge found.

Instead, we can bridge this gap in the humanly knowable by holding that plaintiffs may prove causation in asbestos-related cancer cases by demonstrating that the plaintiff’s exposure to defendant’s asbestos‑containing product in reasonable medical probability was a substantial factor in contributing to the aggregate dose of asbestos the plaintiff or decedent inhaled or ingested, and hence to the risk -

your Honours will see “the risk” emphasised -

of developing asbestos-related cancer, without the need to demonstrate that fibers from the defendant’s particular product were the ones, or among the ones, that actually produced the malignant growth.

The appropriate direction to the jury in such a case was discussed on the next page, 1220, at about point 2 in the left column, “the jury should be told” and then the test is there set out.  Now, your Honours, there was one dissenting judge.  He would have gone further in our favour.

Your Honours, the term, “the contribution to the risk of injury” and its synonyms is not one which is unknown in our own law.  Your Honours will see it used in an unreported decision, again of the New South Wales Court of Appeal in an asbestos case, in Seltsam Ltd v Minahan of 20 March 1996, a decision of Mr Justice Sheller, with whom Mr Justice Handley and Mr Justice Powell agreed.  The report, your Honours, should be one - it is the Butterworths cases and I want to refer to the original pages numbered 18 and 19 which are, your Honours, commence at the third-last page of the document you should have.

Now, your Honours will see a heading “Causation” at the page - I think I said pages 18 and 19, I should have said page 17, your Honours.  The heading “Causation” appears, and then what is said is:

Implicit in his Honour’s finding that exposure to asbestos both while -

the two parties employed him -

the plaintiff contributed to his injury is a finding that Seltsam’s negligence materially contributed to his injury. 

Then, your Honours, there are various quotations made from a decision of the House of Lords in McGhee v National Coal Board, and could I refer particularly to the last paragraph on page 18.  You will see particularly - and it is quoting from McGee’s Case - in the second line:

In McGee’s case at 5 Lord Reid said that from a broad and practical viewpoint he could see no substantial difference between saying that what the defender did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury.

Could I refer a few lines further down to Lord Salmon:

the possibility of distinction existing between (a) having materially increased the risk of contracting the disease and (b) having materially contributed to causing the disease may no doubt be a fruitful source of interesting academic discussions between students of philosophy but that such a distinction was far too unreal to be recognised by the common law.

Now, your Honours will see then at page 19 what was said by the Court of Appeal was that the primary judge had been satisfied:

that the plaintiff while in the employ of Seltsam was exposed to asbestos dust and fibre of sufficient quantity to cause mesothelioma.  Quite small doses of asbestos were capable of causing mesothelioma.

There was also a non-liable party in the sense of there being no negligence where there was an exposure which also could have been causative but his Honour said then:

However applying to this case what was said by members of the House of Lords in McGee’s case I think that the plaintiff is entitled to retain his verdict against Seltsam on the basis that its negligence materially contributed to his injury.

Your Honours, also, if I could refer to, and I will do so very briefly, a decision of the South Australia Supreme Court in Birkholz v Gilbertson Pty Ltd (1984) 38 SASR 121. Could I take your Honours to Chief Justice King at page 130. Your Honours will see particularly a passage commencing at about point 6 of the page: “It might be argued as a matter of strict logic”, and the passage goes through to the remainder of that paragraph. So, too, your Honours, at page 132, commencing about point 4, when these principles are applied, and Justice Bollen, at page 146, commencing halfway down the page and going to the top of page 147.

Now, your Honours, reliance is placed by our learned friends on the decision of the House of Lords in Wilsher v Essex Area Health Authority (1988) AC 1074 as having trimmed back the situation in the United Kingdom and as meaning, in effect, that what was said in the passages from McGee to which I have referred is no longer the law.  May I take your Honours very briefly to that case in Wilsher v Essex Area Health Authority.  I want to take your Honours to page 1090.  It is a passage commencing between letters C and D, and going to E on the next page.  A distinction was drawn, to put it shortly, between cases where there was one possible factual cause in terms of the type of causation, on the one hand - it was held McGee applied to that - and cases where there were a number of other different possible causes.

Your Honours, what we would seek to say about it consists of two things.  The first is that the case does not itself say that the approach taken in McGee was wrong although a caveat is lodged in relation to what had been said by Lord Wilberforce.  The second thing is that if it does change the position then, in our submission, the question whether it should be followed here is itself one of importance.

May I move from that, your Honours, to the question of the importance of the issue.  We have dealt with that, your Honours, in our written submissions which appear at pages 121 and 122, relevantly.  Your Honours, I do not wish to add to that. 

Could I go then to the question of the suitability of the vehicle?  Your Honours, this seems to be, perhaps in a sense, the issue which the respondents’ submissions have sought to raise most vocally, as it were.  We have endeavoured to deal with that, your Honours, by our written submissions in reply, and may I take your Honours to those now.  I wanted to refer particularly - - -

BRENNAN CJ:   You will have another additional 10 minutes, Mr Jackson, beyond the usual 20.

MR JACKSON:   Thank you, your Honour.  May I take your Honours to our written submissions in reply and may I commence with going to the conclusion of them which is in paragraph 28.  What we seek to submit is that in reality the case does rather present these issues starkly for determination.  May I seek to make that out, your Honours, by commencing with what your Honours will see in paragraphs 19 and 20.  Now, we deal with the proposition that the case is an unsuitable vehicle in this way, and I should say that I will go to some other parts of our submission as well as these but may I start here.  Your Honours, what we would submit is that it is not correct to say that the exposure to asbestos in the Royal Navy was or should or, indeed, could be held to be the only cause of the mesothelioma.  There was not a finding to that effect.  There was ample expert evidence of a material contribution.

May I take your Honours to the passages, and I will do so very briefly, in the reasons to which we have referred in paragraph 20.  First, Dr Burns, at page 5 in a passage at the bottom of the page and a passage which goes through to page 7, about line 25.  At the bottom of page 5, he says both crocidolite and chrysotile “have been known to cause mesothelioma”.  Crocidolite, your Honours, is the more vicious form of asbestos, if I can put it that way.  At the top of the next page, in a passage going down to about line 24, dealing with brake lining work, he said:

there was no dose of asbestos that wouldn’t produce a mesothelioma.  There was no known threshold, whereby - but I might also have said that I wasn’t sure what other brake linings might be available.

Then, your Honours, about line 30:

Some have tremolite in, some not and there are reports quoted of surveys where, in people working with chrysotile where there is no tremolite contamination.

Your Honours, chrysotile was a less dangerous form of asbestos but if contaminated with tremolite, as the finding was in this case, then it was of a more dangerous kind.  Then, at about line 35, your Honours will see the question and answer:

I have no way of distinguishing one exposure from another.

And that is dealing with the various types of asbestos.  Then, he says at the bottom of that page there is not enough knowledge about it, and he says there:

is more a dispute in medico-legal circles, but from my understanding, there is no doubt that chrysotile can produce mesothelioma, cancer and asbestosis.

And, your Honours, the passage goes through to about line 24 on page 7.

Your Honours will see, if I could go very briefly then to the other references, at page 66, quoting from Dr Gianoutsos’ evidence, at lines 35 and 36:

“all period [of exposure] are culpable....[and] relevant in relationship to....developing mesothelioma.”

Your Honours, I will not trouble your Honours with going to the next two references but may I say that that conclusion is consistent with the approach taken in the judgment of one of the majority judges, that is, Mr Justice Mason, at page 55, line 25, where he refers to Dr Burn’s evidence and says this:

if accepted, provided the evidentiary basis upon which the trier of fact might conclude that the appellants were responsible -

and at the top of the next page your Honours will see, at about line 10, his Honour said:

If the Royal Navy exposure had not occurred, the trier of fact would have found it probable that the appellants were liable.  But the presence of the Royal Navy cannot be ignored, especially since the evidence points strongly to it in the sense that it, more than any other person, materially increased the risk of contracting mesothelioma.

Your Honours, if the test is was there a material increase in the risk, well then, no doubt, the Royal Navy, in theory, would be liable but if other persons also materially increased the risk, so, too, would they.

Now, your Honour the Chief Justice asked me about the position with the Navy.  Your Honours, that is summarised in paragraphs 21 through to 24 on the next page.  May I invite your Honours to note particularly paragraph 24.  The evidence simply did not support the observation by Justice Beazley that the evidence was that the exposure at the Royal Navy was to crocidolite.  The evidence was in the last three pages the bundle your Honours have - the evidence showed that there was potentially exposure to a number of different types of asbestos in the period in the Royal Navy.

Your Honours, may I move from that - perhaps I should say one further thing before moving on.  You will see then in paragraphs 25 to 27 of our submissions in reply a summary of what the position was concerning the exposure while at the service station. 

Now, your Honours, may I from there take your Honours back to the earlier part of our submissions in reply.  I have already gone to paragraphs 4 to 6 and I shall not take your Honours to those again but, essentially, the judgment arrived at by Justice Beazley, as we submit in paragraph 7, rested on the fact that she excluded the proposition that causation at law could be established by proof of material increase to the risk of mesothelioma.  Your Honours will see in paragraph 8 and the references we have given there that the President’s decision was on the basis that it was not open to the court to hold that causation could be established by proof of material increase to the risk of mesothelioma.  Your Honours, those are our submissions.

BRENNAN CJ:   Thank you, Mr Jackson.  Yes, Mr Walker.

MR WALKER:   May it please the Court.  Your Honours, on that last aspect that my learned friend has raised which goes to the factual basis of these cases as an appropriate vehicle to address certain issues and, in particular, on the question of Justice Beazley’s statement that crocidolite was a substance to which the applicant was exposed during his service in the Royal Navy, I will defer to my learned friends, Mr Hoeben and Mr Hislop, who have the advantage of having been in the case below.

In our submission, the one thing that stands out in relation to that issue is that it presents, and presents only, a disagreement between the parties as to what the record below justifies as a finding of fact on a matter which is, on any view of it, peculiar to this case, namely, did these Royal Navy ships in that time in the past have crocidolite to a material extent to which this particular applicant was exposed?  There being no dispute, as my learned friend’s written submissions on the point makes quite plain that there was considerable exposure to asbestos of some kind by reason of the Royal Navy service, that leaves only the question, essentially and only factual, what kind of asbestos was it.  In our submission, it is correct, for the reasons that my learned friends will elaborate, for the Court of Appeal to have proceeded, as is made clear in the learned President’s reasons and in Justice Beazley’s reasons on the basis that it was crocidolite.

I accept, of course, that the reasoning, particularly of the learned President but also of Justice Beazley requires it to be crocidolite for the peculiar factual finding in relation to this applicant and his disease to be made good.  It is essential in that sense but it is entirely limited to this case.  It raises no issue of principle at all, it is simply a matter of fact finding and the adequacy of evidence to support an inference.  Even our learned friends accept that there was evidence going to the issue of what kind of asbestos it was and leaving only the dispute between us as to whether that was adequate to justify the way in which their Honours proceeded at the appellate level to hold that it was crocidolite.

Your Honours, what I wish to address principally is the nature of the issue which it is then sought on the basis of that contested issue of fact to raise for this Court’s adjudication and, in our submission, it is neither of general importance transcending this case nor, in our submission, is there sufficient doubt attendant upon it as a matter of doctrine to justify this Court’s further attention to elementary matters of causation and law.

There are propositions which, in our submission, cannot be contradicted which show that by reason of what the applicant does not raise and does not seek to challenge in this Court on an appeal which emphasise how unspecial the issue raised is.  They start with a proposition that it is for the plaintiff to prove that the defendants’ conduct caused the loss complained of.  That, of course, is not under challenge.  It moves then to the proposition that the onus of proof is to be discharged by evidence which is capable of supporting that finding on the balance of probabilities.  That, too, is not under challenge and so far the propositions are trite.

It then moves to the question, what happens where the world does not provide a state of confidence in experts called or in judges opining about the expert evidence that everything is known.  We put it that way because there is nothing peculiar or special about not everything being known about natural phenomena such as disease and its causation.

BRENNAN CJ:   But the real question is whether, in that situation, where the plaintiff establishes that the conduct of the defendant exposed the plaintiff to a substantial risk of the injury suffered, there is, so to speak, some shifting of burden to the defendant to demonstrate that it was not that exposure which, in truth, caused the damage.

MR WALKER:   With great respect, your Honour could be forgiven for thinking that that is the issue and it is part of my submission this morning to submit that in reality it is only an unremarkable proposition about what might be called the evidentiary burden shifting during the course of a trial which really lies underneath the issue as presented.  If it is only that question, then, in our submission, for the reasons I am about to elaborate, there is no special leave point.

It may be that my learned friends, if one goes back to the elementary propositions I was putting which are not under challenge, are in fact saying, agreeing as they must with the propositions I have put so far about the nature of the proof of causation, that it will always suffice to prove on the balance of probabilities that a defendant’s conduct did cause a plaintiff’s particular loss to show that the defendant’s conduct was of such a kind that a risk of such a loss occurring was raised.  In our submission, it is only if something as startling as that is put up that something which transcends the facts of this case emerges.

BRENNAN CJ:   That is not the proposition though.  The proposition is:  created the risk and nought else is known.  That is the proposition.

MR WALKER:   Yes, and that matches as well, in our submission, the way in which the law already deals with evidence about the creation of risk.  The way we put it is this:  there was no dispute about the admissibility of this evidence and it goes without saying that such material will be either foundational or important in the development and presentation of the expert opinion evidence about the patho-physiology of diseases such as the applicant’s.  That goes without saying.

It goes without saying that there are both statistical and biological presentations in relation to this apparent risk.  But it is not only the law but also ordinary language and understanding that says that the existence of a risk cannot and must not be equated with the occurrence of harm because, otherwise, there would be causes of action created, for example, by the reckless driver from whom one stepped back onto the footpath just in time.  The creation of the risk is manifest.  The fact of no loss is equally manifest.  No cause of action is created.

In this case there was no claim for unmaterialised danger.  This is a case about materialised danger, the actual causation of the disease and the consequential loss.  So that in this case, the admissibility being granted, the evidence being before the court, the question was or the question may be, depending upon how one reads the special leave issue raised by my learned friends, whether, without more, the possibility which is, of course, another way of paraphrasing the existence of risk, suffices to swing the balance on the balance of probabilities.  In our submission, simply to state the proposition is to warn against its acceptance because were it to be promulgated as a rule, it would be an outlying exception from all other common law commonsense logical reasoning about causation to suggest that to raise a possibility must discharge the onus of proof on the balance of probabilities.  That offends both commonsense and, in our submission, legal logic.

There is no reason shown, either in principle, policy or on authority why that ought to be the rule.  If we are correct in that, then notwithstanding what might be called the “revolutionary nature” of the proposition, it does not justify the grant of special leave.

BRENNAN CJ:   The revolutionary nature is not quite as baldly stated, I suggest, as you put it.  It is that there is a negligent party, to start with.

MR WALKER:   Yes, your Honour.

BRENNAN CJ:   Whose conduct has exposed the plaintiff to injury.  The injury to which he was exposed was of a kind that he has in fact suffered, and there is nothing to indicate that the injury was caused by something else but the conduct which created that risk.

MR WALKER:   Well, your Honour, all but the last integer, yes, is the foundation of this case.  Whether that is really a special leave issue is another matter.  But the last integer is simply not this case because one had the evidence - and the appellate judgments are replete with it, and there is no contest about its availability - one has the evidence, including from Dr Burn, the very passages at 5 to 7 of the application book makes this clear, that there is an acknowledged difference between different kinds of asbestos.  This was not two indifferently identified bits of buckshot as in the two shooters and the man whose eye was put out.  These are not the same at all.  This is not just buckshot.  This is not just asbestos.  Even the evidence upon which my learned friends would rely recognises that.

So, there never was a case presented at trial, on appeal, nor here before your Honours today which says that there is nothing to choose between the Royal Navy and the respondents before you today, because the evidence was full of a reason to prefer the Royal Navy in an exercise which had to do with the balance of probabilities, probabilities as to material contribution to an outcome.

BRENNAN CJ:   That seems to me again to raise another difficult factual question which you may be able to assist us on and it is this:  if the question was whose piece of asbestos caused the mesothelioma, then I see clearly that it could be found, on the balance of probabilities, that it was the Navy’s piece of asbestos.  If, however, the question was the mesothelioma was caused by asbestos of an unknown kind but the risk of the mesothelioma was created by the series of exposures, then we are in a different area of discourse, are we not?

MR WALKER:   We are in a different area of discourse of a kind which this case does not properly thrown up.  It is an area of discourse which might bear, were the facts appropriate, some analogy with or, at least, points of comparison with American doctrines which can be called - some of them are called market-share liability, for example, and if we were in a case of that kind then one would look for the following hallmarks of a case apt to raise for the High Court consideration of those very difficult and, we would accept, socially important matters, and I have to come back to that question in a moment.

You would look first for the facts that, as in true market-share cases, the active ingredient, usually of a pharmaceutical product, was effectively the same.  You would look for there being comparable degrees of exposure, so that the fleeting use would simply not be in a contest with the life-time use.  It is for those reasons - and those are just two examples of the kind of bases upon which such liability may proceed - that this case is a most inapt vehicle because here there were findings available - they are peculiar and special only to this case and raise nothing for the High Court, in our submission - whereby the Royal Navy’s crocidolite was, on the evidence which was logically attractive to the majority in the Court of Appeal, to be regarded as overwhelmingly the likely, that is the probable cause of the disease.

The fact that different kinds of asbestos and different lengths of exposure at a time so much closer to the outcome of the disease in an area where long latency is important, the fact that there were theoretical possibilities which might be called “risk” in a statistical sense, does not, as a matter of law and logic, mean that there ought to be a rule that those people are to be liable, notwithstanding the conviction of the court that on the probabilities it was someone else.  In short, there is nothing in this Court’s previous jurisprudence which is referred to in the Court of Appeal nor, in our submission, in commonsense or principle, which requires examination by this Court again of propositions which are nothing other than the working out, case by case, in a particular area of medical evidence of the onus of proof being on the plaintiff, the standard of proof being the balance of probabilities and the obvious proposition that mere possibilities cannot, without more - and those words require great emphasis - “without more” discharge the burden of proof on the balance of probabilities.

BRENNAN CJ:   Am I right in thinking that you do not challenge the mode of reasoning that was expressed by Chief Justice King in Birkholtz and in the American case?

MR WALKER:   Yes, I do challenge that and for these reasons.  The first is that my learned friend took your Honours in Birkholtz to that part of the Chief Justice’s reasoning which deliberately deals with an alternative way of putting the matter.  If your Honours could observe that at page 129 of 38 SASR, towards the bottom of the page, his Honour, having looked at the evidence in an absolutely orthodox manner of reasoning by elimination of other possibilities, finds:

In my opinion the evidence clearly established on the balance of probabilities that the infection occurred in that way.

And his Honour had, in the preceding page or so, been examining matters of likelihood of air spray and the like in the different parts of the abattoirs.  One then goes over to page 130 where, having concluded in an entirely orthodox manner as to the balance of probabilities, his Honour starts in the first full paragraph:

That is sufficient to dispose of the appeal. 

So, there is the ratio preceding.

In deference to the arguments which were addressed, however, I propose to express my opinion as to an alternative view -

and that is when his Honour moves to consider the McGee matter to which my learned friend drew your attention.  It is entirely obiter.

The same approach emerges in relation to Justice Matheson’s reasoning - - -

BRENNAN CJ:   Well, before you leave that.  It may be obiter, but given the alternative hypothesis which his Honour is there addressing, do you cavil at his expression in the passage which Mr Jackson cited?

MR WALKER:   At the risk, your Honour, of inserting an element of special leave into the matter, I have to say, yes, I do challenge it, and there is a reason as a matter of authority why I do that as well.  First I challenge it because it is impossible, factually, to distinguish his ratio which is orthodox factual reasoning from the alternative approach in reality because his Honour always had more than the simple creation of risk, and he has just demonstrated that in that part which provides the ratio.  That is the first matter.

As a matter of authority, however, this is a Full Court decision before the House of Lords, perhaps recharacterised the approach taken in McGee, in their speeches in Wilsher and, in our submission, the South Australian Full Court had Wilsher, then some of the expressions in relation to the approach in McGee would have, of necessity, been couched somewhat differently.  In particular, as the House of Lords made clear in Wilsher, McGee would not have been regarded as opening up some new avenue of reasoning about causal connection.  As Wilsher pointed out, it simply demonstrated a particularly robust example of how, in some cases, in the circumstances of the case, the admissible evidence about creation of an

increased risk will, in the circumstances - that means, with the other material in the case - permit an affirmative finding.

In our submission, our friends have to go further because this is a case where, in the circumstances of the case, the mere creation of risk was held not probably to show material contribution by the respondents by reason of the preponderance or overwhelming probability in relation to the Royal Navy.  In other words, this is not a case where one talks about an unknown fibre.  The Court has held, for the Court’s purposes, the laws purposes, that the fibre is known on the balance of probabilities.  It was the Royal Navy’s.  The fact that perfect knowledge cannot be claimed by a witness or a court about a matter of science is no different from saying perfect knowledge cannot be claimed about a recollection of a long past dealing.  It is unremarkable and that is why the Court obviously has, as its basic tenet, that facts are to be found on the balance of probability, a formula, which acknowledges the possibility of the unknowable, the unknown or the plain wrong; none of which raises a matter of principle justifying a grant of special leave in this case.

The Californian case, in our submission, simply demonstrates that there are cases where, in the nature of things, the creation of risk, with other circumstances, being admissible evidence, can tip the balance.  There is no conflict in the parties before your Honours as to that possibility.  Our learned friends really have to say, in order to show error in the Court of Appeal, that that is not simply a possibility in the circumstances of a particular case but it is a guaranteed success for the plaintiff once you have shown the increase of risk.  May it please your Honours.

BRENNAN CJ:   Yes, thank you, Mr Walker.  Mr Hoeben.

MR HOEBEN:   Thank you, your Honour.  Your Honours, can I just take up the invitation that was extended by my learned friend, Mr Walker, to deal with the crocidolite issue.  Your Honours, the way in which it was put was not, with due respect, quite correct in the overall context of the case.  The issue was not quantity of crocidolite to which the plaintiff was exposed whilst in the employ of the Royal Navy but rather the fact that he was clearly exposed to that substance.  That was never an issue before the Court of Appeal.  It was not really or does not really emerge as an issue in the additional submissions which were put forward.  It is quite apparent from that material that there must have been crocidolite in that employment.

If I could just take your Honours very briefly to some of the references to that substance to indicate how virulent it was and why it was that, by taking that into account together with two other important factors, the ultimate question that faced the court was that which your Honour put earlier in the discussion, “Whose piece of asbestos caused the problem?”, because that it what it came down to.  It really came down to, essentially, a March v Stramare commonsense and experience factual assessment by the Court of Appeal when they were looking at the totality of the facts.

Your Honours, pages 63 and 64 of the application book gives you some idea, at about 35, of the virulence of this substance, crocidolite.  It was common ground, your Honours, there was no such substance with the service station, it was chrysotile only, because that is the substance which is used for friction materials:

Crocidolite was also used in a variety of products, particularly insulation products.

And that emerged again and again, your Honours, in the course of evidence.  Of course, the substance in the ships was insulation; spraying insulation, insulation of that particular kind.

Your Honours, then over to page 64, at about line 13:

Crocidolite is known to be and was accepted by all witnesses in this case to be an aggressive promoter of mesothelioma. 

And then, your Honours, going down, to give an idea of the virulence of the substance, to line 31:

Of those experts who accepted that pure chrysotile was a promoter, they were unanimous that it was not an aggressive promoter of the disease.  Rogers and others assessed the relative risk coefficients for crocidolite, amosite and chrysotile as being approximately 1000, 550 and 1 respectively.

And there was a more conservative assessment of 33, 15 and 1.  So, the question, the factual issue of the crocidolite and the long period of employment, when compared to the chrysotile and the relevantly recent employment, really became a matter of considerable importance for the court. 

If I could just finally take your Honours to page 67, line 28, of the application book just to compare the chrysotile situation:

His opinion was that to the extent that the studies provide a link between chrysotile and mesothelioma, there had to be a very high level of exposure, sufficient to cause asbestosis.

And, your Honours, that evidence related to chrysotile miners.  So, you are talking about very heavy exposure.  The facts of this case were that the plaintiff was, from time to time, dealing with old brake linings.  The evidence was it produces a substance called forsterite which is almost asbestos-free; that even with new brake linings there were some filing and cutting but, really, the amount of exposure was nothing like a chrysotile mine.  So, that became a matter of considerable importance.

There were the other factors that have been raised, your Honours, in our written submissions but they can be - I think in all of the written submissions they are the same three issues:  the type of fibre; the duration of exposure and the concentration of fibres; and finally, the lag time or the latency period.  What happened was that 15 years of employment with the Royal Navy just fitted fairly and squarely into the profile which indicated from all the studies that which would contribute to this condition of mesothelioma.  So you have 15 years of employment that had the most virulent exposure to at least some of the most virulent asbestos.

GUMMOW J:   Whereas the other did not.

MR HOEBEN:   Exactly.  You had the lag time which was 40 years or so; you had then the relatively lower exposure to the least dangerous of the substances at a level that probably was not dangerous in any event when you are looking at mesothelioma.  Taking all those matters into account, the Court of Appeal had no difficulty, having analysed the philosophical attitudes, to then finally come down and say, “But in any event, as an issued of fact, we find that the causal agent was the employment with the Royal Navy.”

That emerges clearly from the learned President’s judgment, your Honours, at page 55, where he really does highlight, as it were, the difficulty, the simple factual difficulty by sheer weight of evidence that was confronting the plaintiff in the case.  I am now reading, your Honours, at page 55, at about line 17, point 6, in his Honour’s summary.

GUMMOW J:   It is point 6 in the summary, is it?

MR HOEBEN:   It is at line 17, your Honour, starting at item point 6.  When I say “point 6”, I am sorry it was his Honour’s point No 6.

GUMMOW J:   Yes, I understand.

MR HOEBEN:  

6.  As Beazley JA demonstrates, the evidence of the respondent’s principal expert witnesses (Dr Burns and Dr Joseph) does not rise higher than demonstrating that the chrysotile in the brake linings was a potential contributor to Mr Barnes’ mesothelioma. 

I do not take that to be challenged in this application.

Unlike the appellants’ expert witnesses, Dr Burns considered that crocidolite was “just as likely to be harmful as any other asbestos”.  This, if accepted, provided the evidentiary basis upon which the trier of fact might conclude that the appellants were responsible in fact and law for the fatal disease. 

Now, that was conceded by his Honour in balancing the facts.

But it does not compel that conclusion.  I read the evidence about repeated stimuli increasing the chances of getting mesothelioma in the same sense.

The effect of the evidence of Mr Barnes’ exposure to great quantities of the more risky crocidolite at a more likely time cannot be ignored.  Nor can one ignore the evidence of lighter exposure to the less lethal crocidolite in the more recent periods involving the appellants.  The evidence of Dr Burns and Dr Joseph simply fails to offer a scientific or indeed a rational basis for preferring the crocidolite of the appellants over the crocidolite of the Royal Navy -

et cetera, et cetera, your Honours.  That is really - that was the fatal error, and I am now seeking, in a somewhat rushed fashion, your Honours, to encapsulate a very extensive analysis of the evidence which was carried out over a number of days in the Court of Appeal.

GUMMOW J:   Yes, the appeal took - was it three or four days in the Court of Appeal?

MR HOEBEN:   At least four, and it might have been longer.  Certainly four days, your Honour, yes.  So, your Honours, having dealt with the rather challenging philosophical issue as to contribution to risk or actual contribution to the condition, ultimately this case came down to being decided on the facts and the facts were, as Justice Beazley said, “overwhelmingly one way”, and that is why she found in the way in which she did.

So, your Honours, we simply say that the issue which has been raised ought be for another day and another case.  Perhaps if I can just conclude,

your Honours, with raising one matter.  I may have misunderstood an exchange between the Chief Justice and my learned friend, Mr Walker, but your Honour, I think, was postulating a situation where one has negligence, if you like, a breach of duty and that increases a risk of an injury which ultimately occurs.  If that were the situation here, your Honours, and one ignored the Navy - and this emerges in one of the judgments - there would be no difficulty.  Liability would be found by the trier of fact against those persons who had increased the risk, for this reason:  that mesothelioma can only be caused - and there was no issue, as I understand it in this case or in other cases - by exposure to asbestos.  If they were the only exposures then they would be the only culpable situations and therefore they would be found liable.

The difficulty that the plaintiff confronted in this case was there were two, if you like, series of exposures: one with the Royal Navy; one with the later, and because of the way in which the evidence emerged, the culpability landed fairly and squarely with the Royal Navy and, really, exonerated the other period of exposure.  So, the interesting point, strictly speaking, does not arise in this case, your Honours.  If it please the Court.

BRENNAN CJ:   Yes, thank you.  Mr Hislop.

MR HISLOP:   Your Honours, we adopt the submissions made by the counsel for the other respondents.  There is nothing we feel we can usefully add.

BRENNAN CJ:   Thank you.  Mr Jackson.

MR JACKSON:   Your Honours, may I say something first about what has been said about the exposure to crocidolite and also to chrysotile.  Dealing with that first, your Honours will see - and I am referring to the references in paragraph 27 of our submissions in reply - that there was a finding of fact by the primary judge that the asbestos in the chrysotile was contaminated with the more toxic tremolite.  The finding is at page 14, about line 20.  That finding was not set aside - - -

BRENNAN CJ:   Page 14, did you say?

MR JACKSON:   Page 14, your Honour.

GUMMOW J:   Line 20.

MR JACKSON:   Lines 18 to 20.  Your Honours will see that finding was not set aside by the Court of Appeal.  Could I refer first to page 105 of the dissenting judgment of Justice Stein, about line 25.  Your Honours will see his reference to his agreement with Justice Beazley on that issue, and you will see her discussion of the issue at page 93, about line 20:

some evidence of contamination from which the trial judge could draw an inference.  The scope of the inference - - -

GUMMOW J:   Well, it starts at 92, does it not?  It starts at line 35 of 92?

MR JACKSON:   Yes, your Honour.  The passage goes on then through, I suppose, to about 35 on page 93 and what your Honours will see is then a reference to the evidence of Dr Burns which goes through to line 31 on page 94.  Dr Burns’ evidence was accepted, of course, by the primary judge that:

the asbestos in new brake linings was “just as likely to be harmful as any other asbestos”.

Your Honours, as to the exposure to crocidolite - - -

GUMMOW J:   Well then, there is criticism of Dr Burns, is there, at 96?

MR JACKSON:   Yes, your Honour, but the point I am seeking to make about it is this, that Dr Burns was not able to say - and this is the defect in medical knowledge that is referred to there.  That is the essence of it.  Dr Burns’ evidence was that he believed there to be a contribution.  He could not take it further than that.

Your Honours, could I come then to the question of causation?  Our learned friend, Mr Walker, says there are, really, elementary proposition and, of course, there must be proof that the injury was caused by the negligence, but the question is really what is meant by “causation” in the circumstances.  That is the issue dealt with in the United States decisions and the question is whether that is the position in Australia or not.

Your Honours, one sees, for example, what was said by Justice Gaudron in Bennett v Minister for Community Welfare (1992) 176 CLR 408 at page 420, that her manner of expression of it is in terms of risk. Could I take your Honours to Bennett, and at the bottom of page 420 her Honour says:

And although it is sometimes necessary for a plaintiff to lead evidence as to what would or would not have happened if a particular common law duty had been performed, generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach had no effect, or that the injury would

have occurred even if the duty had been performed, it will be taken that the breach of the common law duty caused or materially contributed to the injury.

So, too, your Honours, Lord Salmon in McGee and the particular passage in the Supreme Court of California to which I referred earlier.

Your Honours, if one goes to what was said by one of the members of the majority in this case, Mr Justice Mason, and one goes to what was said at the bottom of page 55, what he is speaking of at the bottom of page 55 and at the top of the next page, he said:

The essence of this view is that the scales remain equipoised because medical science cannot say which exposure was significant.

Your Honours will then see that he says:

If the Royal Navy exposure had not occurred, the trier of fact would have found it probable that the appellants were liable.

Then your Honours will see in paragraph 7 where he really decides the matter on the basis of the issue which is presently in question.

Your Honours, the degree to which the various contributors to the injury might be responsible would no doubt be a matter for argument between them for the contribution.

BRENNAN CJ:   Thank you, Mr Jackson.  The Court proposes to adjourn in order to consider the course it will take.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.16 AM:

BRENNAN CJ:   The issue of causation in negligence in cases where the risk of damage is created by a number of defendants may often be difficult of solution especially where scientific evidence cannot exclude the possibility that the cause of the damage is attributable to the conduct of one or more of the defendants.  However, if the evidence suffices to exclude the possibility in respect of one or more defendants, a finding which exonerates that defendant or defendants is supportable.

The decision in the present case does not, on the facts of this case, reveal such an error in the finding as to give rise to a prospect of success sufficient to justify a grant of special leave.  Accordingly, special leave is refused.

MR WALKER:   If it please the Court, we seek costs.

MR JACKSON:   There is nothing I can say to that, your Honour.

BRENNAN CJ:   Special leave will be refused with costs.

AT 11.17 AM THE MATTER WAS CONCLUDED