BHP Billiton Limited v Van Soest

[2015] HCATrans 153

[2015] HCATrans 153

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A3 of 2015

B e t w e e n -

BHP BILLITON LIMITED

Applicant

and

JORDAN VAN SOEST

Respondent

Application for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

FROM SYDNEY BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 19 JUNE 2015, AT 10.26 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR T.G.R. PARKER, SC, for the applicant.  (instructed by HWL Ebsworth Lawyers)

MR P.C.B. SEMMLER, QC:   May it please the Court, I appear with my learned friend, MR S. TZOUGANATOS, for the respondent.  (instructed by Turner Freeman Lawyers)

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   May it please the Court.  Your Honours, could I take you directly please to page 214 of the application book, where in the reasons for the Full Court of Justice Gray, part of – with respect – a very thoroughgoing canvassing of her Honour’s reasons at trial is in train.  His Honour on page 214 is referring to a report by a Dr Wilson of 1968.  Your Honours will recall that the claim against my client was in respect of mesothelioma suffered by a man who had been a painter and docker in the Whyalla shipyards in 1962.

FRENCH CJ:   The alleged breach went to the failure to test, which would have made it aware of the risk?

MR WALKER:   Yes, in part.

FRENCH CJ:   In part, yes.

MR WALKER:   I think your Honour may have added a rider “which would have revealed”.  Now, if that was the allegation that would make good legal logic for it to have been the allegation.  One thing is crystal clear – there is no finding, indeed, there is a rather deliberate ‑ ‑ ‑

FRENCH CJ:   As to what it would have revealed.

MR WALKER:   ‑ ‑ ‑ refraining from finding as to what would have been revealed.  That is, of course, an important point in our case.  What I want to point out about the Wilson report, having noted that it is six years later, is that what is recorded in paragraphs 96 and 97, and from the course of the trial, shows that this was the closest, by way of a proxy – and proxies in this area of factual disputation are common and appropriate – this was the closest to what might be called an estimation, or an assessment, a finding of fact in relation to exposure. 

Now, a furphy, a travesty of our case is continued in the written submissions against us here to the effect that we were searching for precise quantitation - nonsense.  We accept, as one would hope from an employer that did not have test records, that a lack of numerical, calibrated measurements could not possibly be the end of a plaintiff’s case and we accept as well that what our friends called adjectival estimation or assessment is entirely appropriate. 

Indeed, we call that in aid, and we note that in paragraph 96 the adjectives in question are “minimal” and “very slight” - “minimal” for exposure and “very slight” for a resultant risk.  We note that that which was recommended by that occupational hygienist was to reduce that minimal exposure with very slight risk “to a level described as ‘negligible’” which, of course, on any view of it means not something which anyone, let alone a court, would care about. 

In paragraph 97, the link of that 1968 proxy used, surely, in the plaintiff’s case because it was the only exposure material they had is made by her Honour, accepted in the Full Court, namely an inference that:

similar recommendations –

Obviously, on a similar basis –

would have been made by the Department of Public Health.

Could I at that point go back then, in terms of the breach question, which obviously is informed by those critical matters of fact.  Could I take your Honours please to page 54 of the application book in the reasons of the trial judge.  Here, we have extremely evocative coincidence of time - the painters and dockers in industrial disputation in February 1962.  In a report produced by a Dr Rathus – you see it picked up at the foot of page 54 in paragraph 239, and this is a report into what you understand to be the spraying of limpet asbestos, that is the:

limpet asbestos spraying of fireproof bulkheads –

You see that referred to at the top of page 55 in paragraph 240.

GAGELER J:   Mr Walker, can I just ask where this is going?

MR WALKER:   All this is going to demonstrate that what has happened is that by dint of an approach, which appears to be idiosyncratic to asbestos cases, there has been a finding of liability notwithstanding a failure to find – indeed, a declared failure to find – the level of exposure was above, near or below that which was reasonably understood at the time to be a guide to acceptable behaviour.

It then links in, of course, with what we submit is a very important general proposition, namely, that the standards of the time are those which are appropriate for the judging of breach and that without an understanding of the nature of the conduct, it is impossible to compare what was done or not done with the relevant standards of the time. 

Here, we had the best evidence of standards of the time, being the so‑called TLVs – not numerical, not precise, declared not to be precise, but also declared to be, self‑described as, found by the judges to be a guide, nothing better being named.  With the plaintiff not running the case it would have been anachronistic, industrially and socially anachronistic to the effect that the only safe asbestos was none.  That was the key, there being no case of a kind that one might see in many later cases of no asbestos is the only asbestos. 

This was a case about positing that there was a standard of care that had been breached by reason of an exposure.  The standard, in terms of an understanding as to what was reasonable, is not in doubt.  It is of course not numerically precise.  As I say, that is a furphy.  But then, you always have to have the capacity to find that the defendant – plaintiff bearing the onus – the defendant fell short of the legal standard, the guide.

GAGELER J:   Nobody would dispute that.

MR WALKER:   Well, your Honour, it is disputed by the approach and result in this case.  With respect, of course, your Honour, I have to say yes to what you say, and this is a case where, in our submission, the need for special leave is not, perish the thought that we would wish to promulgate anything different from orthodoxy - we appear as apostles of orthodoxy or as complaining that orthodoxy has been radically departed from. 

Now, that is a case for special leave.  For this Court to correct the misapprehension that in cases of this kind ‑ I fear the kind in question is asbestos – in cases of this kind, there can be a kind of dispensing of what is rudimentary and extremely important to the tort, the doctrine of the tort, namely that there is a falling short, a deficiency, in the quality of conduct by reference to contemporaneous standards. 

The failure to attend to the consequences logically of the incapacity to say that the exposure was below, near or above what the contemporaneous material suggested was a guide to decent industrial hygiene was, in our submission, should have been regarded as simply fatal on ordinary onus principles to the plaintiff’s case.

FRENCH CJ:   What about the various Full Court findings referred to at paragraph 9 of the respondent’s submissions, at page 249 of the application book?

MR WALKER:   The first proposition in relation to paragraph 9 is that on any view of it, the standard in question, which we never suggested was determinative, in terms described itself as a guide and not as a categorical guide, and neither the trial judge, nor the Full Court at any point said that the document was not what it declared itself to be.  So the figure of 5 – there is no magic in it, it is all approximation, self‑declared approximation, is either available in relation to an understanding, contemporaneously of what was regarded as possible, or not.  Now, if it was not available, the plaintiff had nothing, because they did not propose any others because, I stress, this was never run as a “no asbestos; the only safe asbestos is none”.

It is for those reasons, in our submission, that once one puts away this notion that there was a magic figure of 5, once one pushes that away, one is left correctly with what our friends called an adjectival need to assess, all on the balance of probabilities, doing the best one can with necessarily imprecise material, but the court – both courts below – made it crystal clear, as we have noted in our written submissions, that it was not possible to say anything about the exposure in relation to falling below, being near, or exceeding, let alone by some adjectivally described margin, anything that was appreciated at the time concerning that which could be done without being stigmatised as negligent.

Accordingly, one was left with the proposition that because of mesothelioma, because of the medical science as well as the statutory provision linking that with asbestos, and because of the accepted use of asbestos, so is decided the case.  That, in our submission, is the departure from orthodoxy about which we complain and say that this Court should intervene, because that is simply inconsistent with what is required about the importantly prospective judgment by the defendant to be retrospectively assessed by a court without the benefit of hindsight. 

In our submission, the plaintiff’s own case – no doubt supplemented by the material that BHP had available – the plaintiff’s own case never produced anything to suggest either that they were alleging or could show that the only safe asbestos was none, and that there was some standard other than that to which we referred to by way of the TLV of 5.

GAGELER J:   Is this anything more than what Justice McHugh would call a visitation case?

MR WALKER:   It is rather more than that, but it would be idle to deny that it has elements of that.  It has this element of a visitation case, which should happen from time to time.  Maybe the visitor should not constantly be on campus, but from time to time he or she ought to visit to correct.  In our submission it has this element of a visitation case, that the record so thoroughly canvassed only demonstrates all the more forcefully that there is a simple lack of any finding because there was no attempt to prove that there was exposure of a kind which called for any further response than had already been carried out, because there was no attempt to show that the exposure was below what people at the time thought was reasonable. 

There was no attempt to show that what people at the time thought was reasonable was itself an unreliable guide to the common law court’s assessment of that which was thought to be reasonable.  Why does it transcend a mere visitation case?  That is because the principles in question, the principles in question are principles that are obviously governing and will control the outcome of all such cases.

FRENCH CJ:   So from your point of view it is a test case because it lowers – you say it lowers the proper threshold of the application of the principles.

MR WALKER:   Yes.

FRENCH CJ:   And widens the exposure that you might have.

MR WALKER:   Yes.  The importance of the principle is it does so for reasons which appear to be – just in what I might call anthropological terms – looking at what we can see from behaviour, of course it appears to be confined to asbestos.  But there is nothing about the mineral asbestos which fits into what I might call a legal, doctrinal category. 

It does not matter whether the dangerous exposure is coal, polystyrene or asbestos.  The legal doctrine surely has to be the same, unless and until Parliament intervenes as it has with respect to certain substances.  In our submission, that is far more than visitorial.  There needs to be an explanation as to why this was a case where it was not necessary to show that the exposure was above that which at the time was regarded as acceptable.

FRENCH CJ:   Well, I think the visitorial is just – the term is just a shorthand for reference to the general administration of justice ground in ‑ ‑ ‑

MR WALKER:   In particular, where otherwise that burden of being a case of an application to particular facts of well‑accepted principles is not likely to be affected in any way by the decision of this Court, whatever the result in this Court.  We accept that would be true.  We want to vindicate well‑accepted principles.  We do not want to refine them.  We do want them, as it were, in this Court’s disciplinary function made clear that yes, these really do apply and to all cases and asbestos is not special. 

Now, you cannot find any reasoning proposing that asbestos is special, but if you think about this case and the Court of Appeal case of Dunning in New South Wales, to which we have drawn attention by way of supplement in our written reply, adding to the list of cases which seem to be taking a similar approach, in our submission this is more than simply a grievance about a wrong outcome in a particular case, far from it.

Your Honours, as I say the next matter to which I wanted to go was the way in which, when it came to the actual findings of fact, we had this contemporaneous Rathus report, pages 54 to 56 of the application book.  I will take you, in the interest of expedition, to the very close of that – quoted at the top of page 56 in paragraph 243. 

That came after a process which involved attempts to apply numerical estimation and obviously there was a notion of an “accepted tolerance”.  You will see that referred to in paragraph 241 on page 55, and one sees as well that adjectivally, to borrow our friend’s approach, in paragraph 242, the expert said that “figures are well below the tolerance excepting” et cetera.

Now, that being the state of the evidence, when one puts together the 1968 proxy as to exposure, when one puts together the 1962 demonstration of the response to that, when one puts in the TLV which was not, with respect to paragraph 9 of our learned friend’s submissions, ever held to be either not typical or misleading or in any way itself negligent, one has in our submission, the recipe for the error that was committed in both courts below. 

At page 220 of the application book, one finds conveniently quoted in Justice Gray’s paragraph 116, the trial judge’s “explicit findings”, as his Honour calls it.  You will see, at about line 30, in relation to what the TLV – the NHMRC standard – the plain statement:

In any event I cannot make a finding one way or the other because no testing was done . . . it is not appropriate to estimate his exposure retrospectively from other published data.

Having made that finding, then –

light but significant –

Now, that does not and could not possibly amount to a reversal in the space of two sentences from saying, “I cannot find how much in relation to the standard, but I do find it was more than the standard”.  That is ridiculous.  So whatever significant means, it does not mean that.  In our submission, what one there finds is this illogical use of a failure to test.  It is a radical

departure from general principle, if it be supposed it could only be implicitly that the reasoning in the courts below said that if you do not test, you are going to be taken to have exposed people excessively.  There is no such principle. 

The proposition that a failure to test is a particular of negligence is good so far as it goes, but will never get to a plaintiff’s verdict unless and until it has added to it the proved allegation and that if there had been testing, it would have produced a state of affairs which would have called for a response by reason of the standard of care and that would have more likely than not prevented the plaintiff from suffering what the plaintiff claims by way of the actionable damage. 

That, in our submission, is orthodox.  It is, to paraphrase what Justice Gageler put to me earlier, surely not something that in principle could be doubted.  But the way in which this case has been decided completely usurps – reverses – that approach.  Now, whether our learned friends, or indeed the courts below, really made use of a perhaps difficult statement by Justice Handley in the Cockatoo Dockyards Case is really peripheral.  In our submission, those are matters which as well lend to this case the character of appropriate for a grant of special leave.  May it please the Court.

FRENCH CJ:   Thank you, Mr Walker.  Yes, Mr Semmler.

MR SEMMLER:   Thank you, your Honours.  Your Honours, despite what my learned friend has said, this case is essentially a challenge to an evaluative judgment on what is quintessentially a factual issue, that is, on the evidence, what was the response of a reasonable employer to the recognised foreseeable risk to its employee.  There is no question of law, let alone a question of law requiring the intervention of this Court. 

Your Honours, in ground 1, what BHP contends is that there was an error in the factual determination of breach because the evidence as to the level of exposure did not demonstrate that the incidence of the risk was unacceptable.  That is essentially what is being said.  Our short answer to that is this:  There is nothing in the Australian law, in relation to proof of negligence, that requires proof of some so‑called unacceptable risk. 

The test for negligence, at least for foreseeability and breach of duty, is that set out in Shirt’s Case.  The issue is once a foreseeable risk has been identified, as it was identified and found as a fact, both by the trial judge and the Full Court, the question then becomes, in our submission, the extent to which the risk must be quantified – because that is my learned friend’s complaint.  That issue is informed by the difficulty and inconvenience of taking remedial action, and the magnitude of the risk if it came home.

Here, we are dealing with a risk which was known, if it came home, to cause lung cancer and mesothelioma and death.  We know from the findings that the difficulty and inconvenience of responding to that recognised risk was negligible.  In such circumstances, applying orthodox principles, the response of the reasonable man would have been to take those precautions. 

Precise proof in those circumstances – precise proof of the kind that my learned friend says is required – of the incidence of the risk is not required if one is dealing with a risk that can cause death, is recognised to be real, not farfetched or fanciful, and can be ameliorated or completely prevented by the taking of easy, cheap, practicable steps.

FRENCH CJ:   What is the clearest finding in the courts below of the risk in respect of which you say that the applicant should have taken precautions?

MR SEMMLER:   Well, the risk was described as a risk which carried with it – perhaps, if I could quote from page 225.

FRENCH CJ:   Yes.

MR SEMMLER:   Paragraph 129 of Justice Gray’s judgment, at about line 30, a finding of:

a reasonably foreseeable risk of injury to BHP’s employees in the plaintiff’s class . . . was not farfetched or fanciful.

It then – could I say your Honours, it was found as a fact that regardless of the level of the risk, which is the issue that my learned friend focuses on by reference to the TLV, it was found as a fact that the contemporary knowledge, the contemporary understanding of the hazards posed by asbestos dust were such that the response should always be, invariably, that you take precautions in the presence of asbestos dust.  But the proposition that I ‑ ‑ ‑

FRENCH CJ:   Do you say it does not matter for that purpose whether you identify the risk as the risk of contracting mesothelioma, or some other ‑ ‑ ‑

MR SEMMLER:   No, that is correct.  It is the risk of – there is a recognised real risk of lung injury, including disabling lung injury and including injury that can cause death because it is recognised that asbestosis can cause death, as can mesothelioma and lung cancer.  The most important answer to my learned friend’s reliance on this so‑called standard – the TLV ‑ is this. 

The contemporary advice, the contemporary understanding in 1962 was that even if you do not know what the level of the dust is, even if you have not – as BHP did not, even though they knew it should have been done – if you have not done the testing, the contemporary advice was in the presence of dust, such as was present in the late Mr Van Soest’s working environment, you need to take the precautions.  Your Honours, on that issue, could I just take your Honours to page 201 of the application book. At paragraph 58, Justice Gray refers to:

A review of the tendered scientific publications in the public domain in 1962 demonstrates that the process of lagging with asbestos undertaken in shipyards carried with it a risk of injury not only to laggers but also to those working in the vicinity.

That was Mr Van Soest –

The risk of asbestos exposure during shipbuilding operations was questioned . . . and the need for the taking of precautions whenever asbestos dust was generated was the subject of repeated reference.

Then, could I take your Honours to page 214, paragraph 98 of his Honour’s judgment.  He was referring to the inference which the trial judge drew, based upon evidence of Dr Wilson.  Now, Dr Wilson was the head of the South Australian Health Department.  He went out to the shipyard in 1968 because of a union dispute about asbestos.  What he had to say is set out there, as quoted from the judgment of her Honour.  Could I take your Honours to the top of page 215:

Because there was an uncertainty, our attitude would be that no exposure at all would be the best thing -

That is, you get rid of the stuff and make sure people are not exposed to it, and if they have to be, that they wear protection.  Now, her Honour made a finding based on an inference that that is the advice that if BHP had acted on the publications that said look, you need to take steps in the presence of any asbestos – it does not matter about the TLV, if there is asbestos in the working environment, you need to take steps - if they had taken advice, if they had sought advice from the Health Department, the advice would have been that of Dr Wilson, the head of the South Australian Health Department, and it would have been, look, forget about the standard:  If there is asbestos dust in the working environment, you need to take the precautions.  So there was a foreseeable risk of death.  It was a real risk and ‑ ‑ ‑

FRENCH CJ:   How does section 8(2) interact with all of this?

MR SEMMLER:   That is the statutory presumption of ‑ ‑ ‑

FRENCH CJ:   Knowledge.

MR SEMMLER:   Yes, of course – the ability – well, her Honour finds that in the circumstances identified the presumption is satisfied, but her Honour found foreseeability not only on the basis of the statutory presumption, but also at common law.  But she also found that there were – that BHP was carrying on a prescribed industrial or commercial process, and it was presumed to have known at the relevant time that there was a risk of a dust disease. 

Now, your Honours, could I just come back to the submission that I was making earlier.  What I was saying, your Honours, is that the simple answer to my learned friend’s submission is this, that if you are in a situation like this where there is a real risk of death, it is not farfetched or fanciful, your employees are known to be working in an environment contaminated with a known hazard, that it is recommended that you eliminate that hazard.

The precautions to do so – at least to reduce, or indeed, to protect you – are readily available, including respirators, which the trial judge found would have been effective.  They are cheap, they are practical – all of these were findings of the trial judge – then, in our submission, you can move readily, as the court did, from foreseeability to a finding of breach in that the failure to adopt those reasonably cheap and practicable precautions was unreasonable itself and was a breach of the duty.

Now, your Honours, there is no departure from orthodoxy as my learned friend suggests in this case.  Indeed, this is one of the most obvious applications of orthodox principle in relation to the law of negligence that one could expect.  The trial judge clearly identified the requirements of Shirt, moved from foreseeability – a finding of foreseeable risk – to the question of what is a reasonable response to the risk, what is the magnitude of the risk, what – is the plaintiff in circumstances where he is at risk, and then to the question of practical precautions. 

Lord Reid in the Wagon Mound (No 2) in a passage that was quoted by Justice Mason in Shirt’s Case said this, because this encapsulates and summarises our submission that there is no departure from orthodoxy, this is a conventional approach:

If a real risk is one which would occur to the mind of reasonable man in the position of the defendant’s servant and which he would not brush aside as far‑fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense”.

That is this case.  My learned friend’s contention that somehow or other the TLV determined the reasonable response was rejected by both courts below.  That approach that Lord Reid suggested would be reasonable in those circumstances was adopted by the Court of Appeal in this stage in March of this year in the decision of BHP Billiton v Dunning – and I have copies if your Honours wish to refer to it – but I can tell your Honours that exactly the same point was put there, that there was not a quantification of the risk, and therefore orthodoxy had been departed from.  The court rejected that.  Justice Basten indeed quoted what Lord Reid had said and said, look, this is a situation where the reasonable man would not do other than to take these easy, cheap, practical precautions.

So far as my learned friend’s reliance on the TLV is concerned, there is ample evidence and findings that that TLV – that threshold limit value – did not define what was an acceptable risk.  It did not separate the level of dust below which - or above which there was or was not an acceptable risk.  There was no evidence that BHP actually knew about this so‑called standard.

The courts below found that the TLV was not determinative.  There was no suggestion - there was no evidentiary basis for those findings.  The same argument mounted by BHP as is mounted today has been mounted three times in South Australia and three times rejected by the Full Court there, in this case, in Hamilton v BHP, and in Parker v BHP.  It has been rejected by the Full Court of the Supreme Court of Victoria in Thompson v Johnson & Johnson, and as I say, it was rejected only in March by the Court of Appeal in this State.

GAGELER J:   The precise argument being what?

MR SEMMLER:   The argument being that there is some – in circumstances when one is dealing with a risk of mesothelioma which medical science itself cannot quantify in the way my learned friend suggests the judge should have done and the plaintiff should have adduced evidence about.  In that situation, it is unnecessary to describe the risk in any greater mathematical way, in any other quantitative way, than the way in which the judge in this case did, which is to describe it as a real risk, not farfetched or fanciful.  It was a risk, the magnitude of the consequences of which included death. 

The plaintiff was subject to that risk because BHP itself had introduced this known toxic substance into his working environment through its contractors.  It had not warned him about it.  It gave him no precautions.  Respirators were available and used for other purposes by the plaintiff, but they did not say you need to use them for this process, even though the contemporary scientific literature said you should, and the head of the South Australian Health Department said you should. 

Now, in relation to this question of quantification, in the Court of Appeal in March, Justice Macfarlan said in effect it would not be helpful in this situation where you have such grave consequences if the risk comes home, and when you know the person is at risk, it would not be helpful to attempt to describe the risk other than the way in which the judge did, which was to talk about it as being a real risk, not farfetched or fanciful.

All of the requirements of Shirt’s Case were complied with in this case.  There is no suggestion there was no evidentiary basis for the findings.  The findings were findings of fact, including the critical finding that my learned friend relies upon, which is that it was not proven to be an unacceptable risk and therefore no response was required.  It was a foreseeable risk, and each court evaluated in the balancing exercise in Shirt the elements which bore upon that risk and which needed to be taken into account. 

The TLV had been rejected by courts as I have indicated already as not being determinative in the way that my learned friend suggests of the so‑called acceptable risk.  It was riddled with qualifications.  One of the problems was, of course, individual susceptibility, because it was not known and indeed it still is not known why it is that some people are more at risk, are more susceptible to getting cancer from asbestos than others.  That is why the South Australian Health Department advised that if there is dust in the atmosphere, get rid of it, as Dr Wilson said. 

Now, my learned friend says that, well, the plaintiffs risk was very slight or very minimal.  He started up his address by referring to Dr Wilson’s description of the risk to employees in 1968.  But my learned friend, with respect, is in error there because Dr Wilson’s assessment was in respect of other employees six years later who were not painters and dockers, who were sheet metal workers. 

He did an inspection of – and this is set out at 214 of the application book – other circumstances.  He did not see, it was not demonstrated to him that there was lagging going on.  In his inspection, he saw sheet metal workers working with pipes that were covered in asbestos, a completely different environment to that in which the plaintiff worked, where he sometimes actually physically assisted the laggers to apply this thermal insulation by mixing the asbestos and the dust went all over and the ‑ ‑ ‑

FRENCH CJ:   He gave evidence of the actual – the environment in which he was working.

MR SEMMLER:   Yes, and, your Honours, there was an enormous amount of evidence in this case about the level of exposure, from a great range of people.  There was dust.  The trial judge found that overall, his level of exposure was what she described adjectivally as “slight”, although she said there were periods of significant exposure, that is, much higher density exposure. 

Professor Henderson, an eminent pathologist in South Australia, said that he would put the level at the upper end of the lighter range, but what was significant was that the literature identified that people who were exposed to more than light exposures, as this man was from time to time in his work, were at risk of getting mesothelioma, that is, there was an acknowledged association between short exposures of this kind and this fatal illness.  Her Honour found, as was quoted by Justice Gray at page 219 of the application book:

I have already found that the engineroom was a very dusty environment.  I have also accepted that there was visible dust in the atmosphere as observed by the plaintiff and the other lay witnesses.

And so on - an enormous amount of evidence that was distilled into findings that my learned friend does not seem, with respect, to challenge, or, at least, findings of that kind are not challenged.  But what is said by him is that the standard is, in effect, or the so‑called standard, the TLV, forecloses the issue of a breach. 

That is simply contrary to the findings of the judges which were based on ample evidence, and he says – my learned friend says – the standard as to what was reasonable is not in doubt.  Well, it very much was in doubt.  Indeed, it was so much in doubt that the trial judge rejected the notion, as have three intermediate courts of appeal in this country, rejected the notion that the standard somehow or other was determinative. 

Now your Honours, what my learned friend is requiring contrary to orthodoxy is that there be some kind of precision which was simply unavailable.  It was not available to the scientists in quantifying the risk.

FRENCH CJ:   Yes, your time is up now, thank you.

MR SEMMLER:   I am sorry, your Honour, I did not hear.  Thank you, your Honour.

FRENCH CJ:   Thank you very much.  Yes, Mr Walker.

MR WALKER:   Your Honours, it is of course, a gross travesty to suggest we sought precision that was never possible, probably would not have been possible if the case had been heard the day after the exposure.  That is a straw man completely.  In relation to the passage my learned friend took you to on page 225, where Justice Gray refers to the first instance findings, in answer to the Chief Justice’s question to my friend, namely, what is the best finding as to the nature of the quantum of the risk, my friend can only point, of course to the legal label, the reasonably foreseeable risk. 

Well, quite so – that is not what we are talking about.  But, if you look further up the page, you will see that her Honour did understandably adapt and adopt for the purposes of this dispute that piece of evidence, those pieces of evidence, to which I took you in‑chief, which show that it was regarded as “minimal risk”, furthermore, her Honour quite plainly, not regarding the figure of 5, the standard for which we are wrongly castigated as requiring impossible precision at all. 

That was, I stress, the only evidence above the nil which is now just emerging in argument as what the plaintiff is really contending for.  Indeed, they seem to say if we do not have evidence that is satisfactory as to the state of art, and of course there was much evidence as my friend has himself said about state of art, but if the plaintiff cannot get a finding that it can then compare with findings adjectivally and estimated as to the actual exposure the plaintiff suffered, then the way to deal with it is to require all precautions to be taken calculated to eliminate the exposure.

Where do I get eliminate from – I get that from the erroneous close of paragraph 129, on page 225, which is the Full Court’s perhaps logical response to what really is the plaintiff’s case.  The plaintiff overtly, of course, always disavowed the impossible and anachronistic notion that employers were negligent for there being any asbestos - what might be called strict liability.  They disavowed that. 

There were many days about what the industry and state of art and reasonable standards of industrial hygiene required.  Orthodoxy, as we still say we are advancing, orthodoxy accepts without any demur or disturbance the possibility that standards will change as applied by a common law court for purposes of a negligence case, depending on time, and sometimes even place, but certainly time, state of art, medical understanding.  It is for those reasons, in our submission, that of course the standard played an important part.  It is simply ridiculous, however, to say that it was done by the numbers, so far as we were concerned. 

Your Honours, in relation to what other courts have done according to my friend, and we think, with respect, one can pretty much accept this as

a fair description, though very summary – the fact, in our submission, is that that simply demonstrates some persistence and something approaching ubiquity in what we submit is error. 

That is a reason for special leave.  It is not just a test case for us.  It is a case which is, in our submission, apt to raise and consider, we respectfully submit, and to explode the notion that there is something special about cases like mesothelioma where exposure would have been far distant in the past.  It is for those reasons, in our submission, that this is an apt case for special leave, because of the thoroughness with which the facts have been canvassed, and the clarity of the factual findings, leading to very little dispute about facts, and exposing what in our submission are serious fallacies in relation to the doctrines of negligence. 

FRENCH CJ:   Can I just ask what, if any, relevance section 8(2) has in your submission?

MR WALKER:   Practically none.  It was very relevant, as your Honours know, at various anterior steps in our slide to disaster.

FRENCH CJ:   Yes.

MR WALKER:   So, starting with foreseeability, duty, et cetera.  It has none to the special leave points which we raise.

FRENCH CJ:   Yes.

MR WALKER:   May it please the Court.

FRENCH CJ:   Thank you.

In our opinion, the case presents no question of legal principle.  The complaint of the applicant relates to the application of principle which is said in this case to have effectively and erroneously widened the exposure of the applicant to liability.  In our opinion, the evidentiary setting indicates there are insufficient prospects of success for the applicant in the ultimate appeal if special leave were to be granted and renders this matter an unsuitable vehicle for the grant of special leave.  Special leave will be refused with costs.

The Court will now adjourn to reconstitute.

AT 11.14 AM THE MATTER WAS CONCLUDED