BHP Billiton Limited v Van Soest
[2014] SASCFC 135
•19 December 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
BHP BILLITON LIMITED v VAN SOEST
[2014] SASCFC 135
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Nicholson and The Honourable Justice Bampton)
19 December 2014
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - AS BETWEEN EMPLOYER AND EMPLOYEE
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - DANGEROUS THINGS OR SUBSTANCES
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE - GENERALLY
EMPLOYMENT LAW - LIABILITY AT COMMON LAW FOR INJURY AT WORK - NATURE AND EXTENT OF LIABILITY - GENERALLY
Appeal against a judgment awarding the plaintiff damages as a result of contracting a dust disease. The plaintiff contracted mesothelioma, allegedly through his employment in 1962 as a painter and docker at a shipbuilding yard operated by the defendant, BHP Billiton Limited. It was not in dispute that the plaintiff suffered from a dust disease and that he was exposed to asbestos dust during his employment with BHP. The issues at trial were whether BHP breached its duty of care to the plaintiff and whether that breach was the cause of the plaintiff’s disease. The Judge found in favour of the plaintiff and awarded damages.
Whether section 8(2) of the Dust Diseases Act operates so that the plaintiff was still required to prove that BHP knew or ought to have known that the plaintiff’s particular type of exposure to asbestos constituted a foreseeable risk of injury. Whether the Judge erred in concluding that BHP had failed to rebut the presumption created by section 8(2). Whether the Judge incorrectly formulated the duty of care owed by BHP in absolute terms. Whether the Judge erred in the use that she made of the maximum allowable concentration of asbestos dust recommended by the National Health and Medical Research Council in 1962. Whether the Judge erred in the use she made of expert evidence, historical publications and the transcript of proceedings in 1962 and 1968 in the Commonwealth Conciliation and Arbitration Commission. Whether the Judge erred in finding that it was not open to BHP to argue that even if it had not been negligent, the plaintiff would or may have nevertheless developed mesothelioma.
Held per Gray J (Nicholson and Bampton JJ agreeing) (dismissing the appeal):
(1) There was no error in regard to the Judge’s interpretation of the relevant presumptive provisions in the Dust Diseases Act.
(2) The suggestion that the Judge imposed an absolute duty should be rejected.
(3) BHP’s submission that the application of the National Health and Medical Research Council’s recommended maximum allowable concentration to a particular workplace could determine whether or not there was a foreseeable risk of injury should be rejected.
(4) The expert evidence on which the Judge relied was evidence given well within the qualifications of the respective witnesses.
(5) There was no error in the Judge’s use of the historical publications or the 1962 and 1968 Commonwealth Conciliation and Arbitration Commission proceedings.
(6) The findings of fact and conclusions of the Judge were supported by the evidence, were open on the evidence and were appropriate.
(7) On the evidence, the exposure of the plaintiff to asbestos while in the employ of BHP was established to be a material cause of his contracting the dust disease.
Dust Diseases Act 2005 (SA) s 8(2); Dust Diseases Regulations 2006 (SA) Sch 1, referred to.
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307; BHP Billiton Limited v Parker (2012) 113 SASR 206; BHP Billiton Ltd v Hamilton (2013) 117 SASR 329; BI (Contracting) Pty Limited v University of Adelaide (2008) 6 DDCR 382; Cockatoo Dockyard Pty Ltd v Browne [2001] NSWCA 58; Czatyrko v Edith Cowan University (2005) 79 ALJR 839; Dasreef Pty Ltd v Hawchar [2010] NSWCA 154; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; Parker v BHP Billiton Limited [2011] SADC 104; Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330; Stevedoring Finance Committee v Henderson (2000) 2 VR 396; Thompson v Johnson and Johnson Pty Ltd [1991] 2 VR 449; Trevorrow v State of South Australia (No 5) (2007) 98 SASR 136; Wyong Shire Council v Shirt (1980) 146 CLR 40, considered.
BHP BILLITON LIMITED v VAN SOEST
[2014] SASCFC 135Full Court: Gray, Nicholson and Bampton JJ
GRAY J.
This is an appeal against a judgment awarding a plaintiff damages as a result of contracting a dust disease.
The plaintiff and respondent, Willem Michael Andrianus van Soest, aged 73 years at the time of trial, contracted the dust disease of asbestosis, more particularly described as malignant pleural mesothelioma, allegedly through exposure to respirable asbestos dust and fibre in the course of his employment with the defendant and appellant, BHP Billiton Limited. During the period from July to September 1962, the plaintiff worked as a painter and docker at the fitting out wharf at the Whyalla Shipbuilding and Engineering Works.
At trial, it was not in dispute that the plaintiff suffered from a dust disease and, in particular, from asbestosis. At issue was whether the plaintiff’s work with BHP caused or contributed to his asbestosis. It was not in dispute that the plaintiff was exposed to asbestos dust during the course of his employment with BHP, however there was an issue about the extent of that exposure. It was accepted that BHP owed a duty of care toward the plaintiff as its employee. However, it was contended that, in the circumstances, BHP did not breach its duty of care and, further, that the circumstances of the plaintiff’s employment were not relevantly a cause of his asbestosis.
The trial Judge concluded that, in the course of his employment duties, the plaintiff was exposed to asbestos dust which was a cause of his asbestosis disease. In so concluding, the Judge relied on evidence from the plaintiff and others about the work undertaken by the plaintiff and his exposure generally to asbestos dust. The Judge also heard expert evidence as to the significance of that exposure. In concluding that BHP had breached its duty of care, the Judge had regard to the contemporary state of knowledge as to the risks to workers. The Judge conclued that the plaintiff’s claim in negligence should succeed.
On the appeal, BHP challenged the Judge’s reliance on material aspects of what was said to be impugned expert evidence and submitted that the Judge’s findings of fact, both on that account and generally, were flawed. As a consequence, in the reasons that follow, there is a need to traverse in detail many of the Judge’s findings and the evidence relevant to those findings. It is to be understood that a number of the challenges made by BHP overlapped and to that extent there is a need for a degree of repetition in these reasons.
BHP also challenged the Judge’s interpretation of presumptive provisions in the Dust Diseases Act 2005 (SA). These challenges essentially raised questions of statutory construction.
I have reached the conclusion that the expert evidence on which the Judge relied was evidence given well within the qualifications of the respective witnesses. I have also reached the conclusion that the findings of fact made by the Judge were supported by the evidence, were open on the evidence and, on my review of the evidence, were findings that I consider to be appropriate. I have found no error on the part of the Judge in regard to her interpretation of the relevant presumptive provisions in the Dust Diseases Act. Ultimately, it is my conclusion that the Judge’s findings in respect of duty, breach and causation should not be disturbed and that the appeal by BHP should be dismissed.
Introduction
The trial was conducted between April and December 2012, with judgment on liability delivered on 17 June 2013 and judgment on damages delivered on 28 June 2013. The appeal is against the judgment relating to liability. The plaintiff died as a result of his condition of mesothelioma on 24 July 2013. The appeal is brought by BHP against the legal personal representative of the plaintiff’s estate.
Between 1940 and 1978, BHP owned and operated the Whyalla shipyards as a division of its Whyalla Shipbuilding and Engineering Works. During the shipyard’s life, 66 vessels were built, including freighters, bulk carriers, container ships, tankers and ferries. By 1962, 36 vessels had been completed.
The process of ship construction first involved structural work completed at the slipway. On the completion of this work, the ship was launched and floated to the fitting out wharf. At the wharf, machinery and other internal fixtures were installed and the ship made good for sea service. At this point, the construction involved work by boilermakers, welders, plumbers, fitters, electricians, mechanics, sheet metal workers, carpenters, painters and dockers. Additionally, contractors would be engaged, including laggers.
BHP engaged two contractors to undertake the bulk of the insulation work. Newbrook Insulation Company Pty Ltd undertook most of the spraying of bulkheads and deckheads with a product known as limpet asbestos. Bells Asbestos and Engineering (Australia) Limited undertook the lagging of pipes, machinery and other surfaces using a variety of products, including types of asbestos. Both contractors were engaged by BHP over many years, before and after 1962.
The PJ Adams, a large, steam-powered oil tanker, was built at the Whyalla shipyards. Work at the fitting-out wharf commenced on 10 January 1962. Sea trials took place between 16 and 18 October 1962. The PJ Adams was completed on 29 October 1962. The plaintiff was employed at the Whyalla shipyards from 3 July until 21 September 1962 and during this time was on sick leave for eight days. In all, he worked for a total of 57 days. At that time, the plaintiff was aged 22 years. The plaintiff worked only on the PJ Adams. BHP accepted at trial and on the appeal that the plaintiff was exposed to asbestos while working on the PJ Adams.
The construction specifications for the PJ Adams included information about the ship layout and insulation requirements. The engine and boiler rooms were located at the stern of the ship, directly below the accommodation areas. The boilers were mounted above and aft of the main propulsion turbines, which were housed in the engine room. A bulkhead was positioned between the boiler room and the engine room; however, the two rooms were connected. Thermal insulation of the boilers, auxiliary machinery and pipe work was specified in the engine room and boiler rooms. Fire proofing insulation was specified for inside the engine and boiler casings, the underside of the engine room and boiler room deck heads, the internal bulkheads, deck beams, and stiffeners.
The general process of undertaking insulation work was not in dispute. Limpet asbestos came in powder form and was prepared in a mixing machine. The machine was located some distance from the operator. A hose with an applicator gun was attached to the machine end. Material was blown through the hose and applied by the operator with the gun to the relevant surface. A fine film of water helped to bond the material together. At the Whyalla Shipyards, spraying was undertaken at times when most workers were not in the vicinity, such as during night shift. However, the process produced varying amounts of overspray, which clung to other surfaces and required cleaning off.
As the engine and boiler systems included pipe work, the technical specifications nominated the types of products to be applied and the thickness of insulation required. The materials to be used contained varying types and amounts of asbestos fibres. It was common ground that the materials contained amosite and chrysotile. These chemicals are known as brown-grey asbestos and white asbestos, respectively. There was a dispute as to whether crocidolite, known as blue asbestos, was present. Moulded coverings of different lengths, diameters and thicknesses were fitted over the insulating pipes. These coverings came in both block and powdered forms, and were mixed with water and applied to the surface, forming a hard-set covering. Asbestos products were not used exclusively. Some pipe work not reaching very high temperatures, such as the accommodation hot water system, would be insulated with canvas and felt. In refrigerated areas, cork was applied. Cabin bulkheads were lined with Formica, rather than the asbestos product, Marinite.
The Trial
The plaintiff gave evidence of his working environment and the work performed. He said that at the start of each day, he would report to a foreman who would instruct him as to the work that he was to perform that day. He recalled working in the engine room and the accommodation area. He initially gave evidence that he spent the majority of his time in these areas painting. However, later in his evidence, he agreed that he did not paint in the engineroom or the accommodation area. He would assist other tradesmen working in the engine room. In particular, he recalled assisting laggers in applying insulation materials. He said that these materials had a powdery feel and gave off dust. His tasks in assisting the laggers included cutting sections of rope and winding that rope around pipes. He would also assist by cutting sections of pipe using a handsaw, which would give off dust. The sections of rope and pipe were secured using a slurry comprised of water and a powder that was poured from a bag. The plaintiff recalled seeing dust falling from the scaffolding, where the laggers were working, to the floor of the engine room. He would be required to sweep that dust from the floor, using either a full length broom or a dustpan and broom. He was only provided with a respirator when he was painting. The dust settled on his clothes and he noticed that when he blew his nose, his handkerchief would become dirty. The plaintiff said that, during the period that he was employed at the shipyard, he spent about half of his time working in the engine room. A majority of the time in the engine room was spent performing cleaning duties. He said that there was lagging work occurring most of the time that he was in the engine room.
The Judge made the following observation in regard to the plaintiff’s testimony:[1]
Caution is called for in assessing the reliability of the plaintiff’s evidence and the corroborative value of the other testimony. Because of the plaintiff’s ill health and a concern about his life expectancy, his evidence was taken on Commission in Perth on 19 April 2012. I did not personally see or hear him give his evidence however I have viewed the video recording of those proceedings from which I am able to say that he presented as a non-emotive and cooperative witness. I gained the impression that he answered questions to the best of his ability. There was no impression of exaggeration. It is also clear that he was giving evidence whilst suffering from physical discomfort and fatigue.
[Footnote omitted.]
[1] Van Soest v BHP Billiton Limited [2013] SADC 81, [33].
Supporting oral testimony was adduced from former BHP employees who had worked at the fitting out wharf over many years. Brian Hunter, a plumber between 1960 and 1966 and an engineering draftsman between 1966 and 1976, Robert Hannon, a boilermaker between 1959 and 1978, and David Schrapel, a boilermaker between 1954 and 1964, gave evidence about their work in fitting out vessels. These witnesses detailed their experiences and observations of their working environment, particularly in the engine rooms of several ships, including the PJ Adams. Ian Ewbank, a lagger employed by Bells from 1965, gave evidence about the usual lagging products and processes used by Bells during its contractual arrangements with BHP. In respect of these witnesses, the Judge observed:[2]
In the context that the method and sequence of work at the fitting-out wharf remained substantially the same during the life of the shipyards, a matter not disputed by BHP, I accept that the evidence of these witnesses is capable of providing corroboration of the plaintiff’s account.
[Footnote omitted.]
Statements from six deceased former BHP employees and the sworn evidence of a seventh given in other proceedings were tendered. Each had brought proceedings for damages against BHP in relation to a dust disease. Each described their general working conditions and their respective exposure to dust at the fitting out wharf, including while working on the fitout of the PJ Adams. The Judge took a similar view of these witnesses as referred to in the extracted remarks concerning those other former employees who gave oral evidence. The Judge made the following further observations in regard to the evidence called to support the plaintiff:[3]
I am satisfied that each of the plaintiff’s lay witnesses were generally endeavouring to assist the Court to the best of their ability. I could detect no deliberate exaggeration.
However the passage of time may influence the accuracy of memory and in this case some 50 years have passed since the PJ Adams was at the fitting-out wharf. There were some internal inconsistencies and differences between the accounts of witnesses. I will deal with these issues as and when the need arises when making findings. However one particular inconsistency in the plaintiff’s evidence serves as an example of the tricks of memory. When the plaintiff gave a history to Professor Arthur William Musk, his treating physician early in his treatment, his recollection was that he worked at the Whyalla Shipyards for about eighteen months. He then thought he worked there for six months. Ultimately he agreed that the BHP records correctly recorded a period of two and a half months. His explanation for the error was that he was doing the best he could with his memory of 50 years ago. So much is unsurprising. Such an error does not mean that the memory of the work he performed must be faulty but it does highlight the need for caution. Specific areas of concern are dealt with in the course of making findings.
As to the statements and evidence of the deceased former employees I bear in mind that these were given in the course of their own respective damages claims against BHP which might influence the objectivity of the various accounts. In addition the statements were made many years after the subject events and the material was not the subject of cross-examination in these proceedings.
[Footnote omitted.]
[2] Van Soest v BHP Billiton Limited [2013] SADC 81, [31].
[3] Van Soest v BHP Billiton Limited [2013] SADC 81, [34]-[36].
BHP led oral evidence from Max Douglas, who held the position of Superintendent of Industrial Relations with BHP from 1960 until early 1969. He recalled attending the fitting out wharf as part of his duties. He gave evidence of his involvement as an advocate representing BHP in proceedings in the Commonwealth Conciliation and Arbitration Commission in 1962. The transcript of those proceedings was tendered in evidence. The evidence given at the 1962 Commission proceedings was relevant to the question of the exposure of the plaintiff to asbestos dust and fibre during the period of his employment with BHP and was also relevant to the question of BHP’s knowledge about the danger of asbestos exposure at that time. The Judge described Mr Douglas as a cooperative witness, but, in her view, his evidence was to be evaluated having regard to the lengthy passage of time since his employment with BHP.
The Judge undertook a detailed review of the evidence of the witnesses about the plaintiff’s duties and the areas of the vessel in which he worked, including a detailed discussion about the accommodation area, the engine room, including its environment, and the sequence of work. Following this detailed treatment of the evidence, the Judge summarised her findings as follows:[4]
[4] Van Soest v BHP Billiton Limited [2013] SADC 81, [122].
- That on occasions the plaintiff personally handled insulation products including dry composition powder, slurry, pipe sections and asbestos rope;
- That the plaintiff was present in the engineroom for 50% of his time when insulation products of the various types referred to in the specifications were applied in the engineroom and connected boiler room.
- That these insulation products contained amosite and chrysotile asbestos in varying proportions.
- That quantities of dust and fibre were released into the atmosphere of the engineroom and connected boilerroom from cutting, fitting, mixing, coating, applying and modifying such materials.
- That during and after such activities occurred dust could be seen falling and floating in the atmosphere and settling on workers, surfaces and the floor;
- That the engineroom was a very dusty environment occasioned by many work processes but predominantly by lagging and that dust could be seen in the atmosphere.
- That the plaintiff was directed to and cleaned the engineroom where laggers were working or had worked.
- That the plaintiff was directed to and cleaned dried overspray of limpet asbestos following spraying on the night shift.
- That when the plaintiff cleaned with a broom, hand broom and dust pan he disturbed dust and could see dust moving in the air around him.
The Judge then turned to discuss the plaintiff’s work history and his exposure to materials containing asbestos. In that respect, the Judge concluded: [5]
In making findings as to other presumed asbestos exposure and having clarified the matters of history set out above I accept the plaintiff’s evidence. I find that apart from his employment at the Whyalla Shipyards he was exposed to asbestos when he worked as a bricklaying apprentice, a tyre fitter, a patio builder, and an oilrig worker. He was not exposed to asbestos as a roofing contractor as when removing asbestos roofing he wore protective clothing. I accept the plaintiff’s assessment that the majority of dust in his employment history was when he was employed as a painter and docker on the PJ Adams.
[Emphasis added.]
The Judge then proceeded to discuss the medical diagnosis, concluding:[6]
On the basis of the medical evidence I find that the plaintiff was diagnosed with pleural malignant mesothelioma in November 2012 which most likely resulted from above background occupational exposure to asbestos.
[5] Van Soest v BHP Billiton Limited [2013] SADC 81, [136].
[6] Van Soest v BHP Billiton Limited [2013] SADC 81, [140].
Against this background, the Judge addressed the question of forseeability of the risk of injury and, in particular, whether BHP knew the plaintiff to be at risk in 1962. First, her Honour discussed relevant legal authorities, including Wyong Shire Council v Shirt,[7] Czatyrko v Edith Cowan University,[8] BHP Billiton Limited v Parker[9] and Dovuro Pty Ltd v Wilkins.[10] Having reviewed these authorities and identified the applicable general principles, the Judge then addressed the statutory presumptions contained in the Dust Diseases Act. Section 8 of the Act relevantly provides:
[7] Wyong Shire Council v Shirt (1980) 146 CLR 40.
[8] Czatyrko v Edith Cowan University (2005) 79 ALJR 839.
[9] BHP Billiton Limited v Parker (2012) 113 SASR 206.
[10] Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317.
(1) If it is established in a dust disease action that a person (the injured person)—
(a) suffers or suffered from a dust disease; and
(b) was exposed to asbestos dust in circumstances in which the exposure might have caused or contributed to the disease,
it will be presumed, in the absence of proof to the contrary, that the exposure to asbestos dust caused or contributed to the injured person's dust disease.
(2)A person who, at a particular time, carried on a prescribed industrial or commercial process that could have resulted in the exposure of another to asbestos dust will be presumed, in the absence of proof to the contrary, to have known at the relevant time that exposure to asbestos dust could result in a dust disease.
…
The Judge referred to the following observation of Doyle CJ and White J in BHP Billiton Ltd v Parker concerning the general nature of the presumption provided by section 8(2):[11]
… It is more natural to understand the second use of the expression “exposure to asbestos dust” in s 8(2) as referring to the same kind of exposure to which the expression when first used refers, ie, any exposure at all. Persons who carry on a process which could result in the exposure of another to asbestos dust (ie, any exposure) are to be presumed, in the absence of proof to the contrary, to know that exposure (ie, exposure generally) could result in a dust disease.
The more recent discussion and analysis by the Full Court of section 8(2) in BHP Billiton Ltd v Hamilton[12] followed the delivery of the Judge’s reasons in the present proceeding. This discussion is referred to later in these reasons.
[11] BHP Billiton Ltd v Parker (2012) 113 SASR 206, 257.
[12] BHP Billiton Ltd v Hamilton (2013) 117 SASR 329.
It was conceded by BHP that, at the relevant time, it carried on a prescribed industrial or commercial process that could have resulted in the exposure of another to asbestos dust. The plaintiff submitted, in reliance on section 8(2) of the Dust Diseases Act, that a reasonably foreseeable risk of injury to the plaintiff was to be presumed in the absence of any proof to the contrary adduced by BHP. However, the plaintiff also relied on evidentiary material said to establish BHP’s actual knowledge of the risks associated with asbestos exposure leading up to and during 1962 to establish a foreseeable risk of injury. Relevance was placed on scientific, medical and industrial papers and articles in the public domain published up to 1962 to establish that BHP ought to have known about the dangers of asbestos exposure in the workplace.
It was BHP’s position that, although the statutory presumption in section 8(2) refers to knowledge in the general sense, the onus remained on the plaintiff to demonstrate that there was a foreseeable risk to him. In the alternative, BHP claimed to have rebutted the presumption by evidence which it led that it did not know, during the plaintiff’s employment, that he was at risk of contracting a dust disease.
BHP acknowledged that there was no dispute that, as at 1962, there was an appreciation that if there was excessive exposure to asbestos then there was a potential for a health risk. BHP’s position, however, was that the plaintiff’s exposure to asbestos dust and fibre would at all times have been below the level at which exposure was understood at that time to be dangerous.
In relation to this issue, the Judge concluded:[13]
I reject the submission that the known risk in 1962 was limited to asbestosis in persons heavily exposed and that it was not known how serious exposure could be to a person with light exposure such as the plaintiff. The extent of the risk to the plaintiff is set out in the numerous publications referred to earlier. I only need repeat that by 1955 it was known that there was a link between asbestosis and lung disease and that by 1960 asbestos exposure had been linked to mesothelioma.
[13] Van Soest v BHP Billiton Limited [2013] SADC 81, [659].
Legal Principles
On the appeal, the primary legal question concerned the proper construction of section 8(2) of the Dust Diseases Act. Otherwise, the challenges related to the Judge’s findings of fact. There was little dispute about the otherwise relevant general principles of law.
In Roads and Traffic Authority of New South Wales v Dederer, Gummow J observed:[14]
... First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt.
[14] Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330, 337.
In Czatyrko v Edith Cowan University, it was noted by the High Court that:[15]
… An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards. The employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in a case of repetitive work.
[Footnotes omitted.]
[15] Czatyrko v Edith Cowan University (2005) 79 ALJR 839, 842-3.
BHP owed the plaintiff a duty to take reasonable care to establish and maintain a safe place of work and a safe system of work. This was a recognised relationship and in this circumstance the duty may be formulated in those general terms.
As Gummow J observed in Roads and Traffic Authority of New South Wales v Dederer, “[i]t is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be.”[16]
[16] Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330, 351.
The risk in the present case was that a worker, performing work of the kind performed by the plaintiff, would be exposed to asbestos dust and fibres in the course of that work, due to the use of products containing asbestos by other workers and the need for the residue to be cleaned up. There was a further risk that exposure to asbestos dust and fibres would result in the worker contracting an asbestos related disease.
The incidence and magnitude of the first aspect of the risk of harm was under the control of BHP through its responsibility for the system of work. BHP was in a position to impose controls on the manner in which products containing asbestos were used. This was also the responsibility of BHP. The incidence and magnitude of the second aspect of the risk was determined as a matter of medical science. This risk was linked to the risk of exposure, and the greater the intensity of the exposure, the greater the risk of a worker contracting an asbestos related disease.
BHP accepted that it owed a duty of care to the plaintiff. The question was whether BHP was in breach of its duty of care in relation to the above risks. This question is to be approached in the manner indicated by Mason J in Wyong Shire Council v Shirt:[17]
A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being “foreseeable” we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
[Footnote omitted.]
[17] Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-8.
This approach has been referred to as the “Shirt calculus”. As Gummow and Hayne JJ said in State of New South Wales v Fahy:[18]
… Reference to "calculus", "a certain way of performing mathematical investigations and resolutions", may wrongly be understood as requiring no more than a comparison between what it would have cost to avoid the particular injury that happened and the consequences of that injury. Shirt requires a more elaborate inquiry that does not focus only upon how the particular injury happened. It requires looking forward to identify what a reasonable person would have done, not backward to identify what would have avoided the injury.
In Vairy v Wyong Shire Council, it was explained why it is wrong to focus exclusively upon the way in which the particular injury of which a plaintiff complains came about. In Vairy, it was said that:
"[T]he apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff's injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be 'nothing'."
It is only if the examination of breach focuses upon "what a reasonable man would do by way of response to the risk" (emphasis added) that it is sensible to consider "the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have".
[Footnotes omitted.]
[18] State of New South Wales v Fahy (2007) 232 CLR 486, 505-6.
The plaintiff had also to establish that the breach of the duty of care caused the relevant injury.
The Appeal
Multiple complaints were advanced by BHP on the hearing of the appeal. Broadly stated, BHP challenged the Judge’s conclusions both on the question of whether a risk of injury to the plaintiff was reasonably foreseeable in 1962, and whether BHP breached its duty of care in relation to any risk which was foreseeable. Extensive submissions were filed by both parties, each including detailed references to the evidence. It is convenient to address the complaints in the order advanced by BHP.[19]
[19] It is to be understood that a number of the grounds listed in the notice of appeal were abandoned at the hearing.
Foreseeability - Construction of Section 8(2) of the Dust Diseases Act
Section 8(2) of the Dust Diseases Act creates a rebuttable presumption in favour of a plaintiff in relation to foreseeability. As earlier noted, the section provides that:
A person who, at a particular time, carried on a prescribed industrial or commercial process that could have resulted in the exposure of another to asbestos dust will be presumed, in the absence of proof to the contrary, to have known at the relevant time that exposure to asbestos dust could result in a dust disease.
In order for the presumption to be enlivened, it is necessary for the plaintiff to establish that BHP carried on a prescribed industrial or commercial process. Schedule 1 of the Dust Diseases Regulations 2006 (SA) lists the prescribed industrial or commercial processes for the purposes of section 8(2), along with the relevant date at which the presumption is to take effect. It was not in dispute that BHP carried on a prescribed industrial or commercial process for the purposes of section 8(2).
BHP argued that, properly understood, section 8(2) does no more than create a presumption of “generalised knowledge” of the dangers of exposure to asbestos. It submitted that the presumption does not go so far as to establish the element of foreseeability in negligence and that a plaintiff is still required to prove that BHP knew or ought to have known that the plaintiff’s particular type of exposure to asbestos constituted a foreseeable risk of injury.
The topic was addressed by the Full Court in BHP Billiton Limited v Hamilton, where Blue J expressed the following view:[20]
[20] BHP Billiton Limited v Hamilton (2013) 117 SASR 329, 335-6.
While the subsection uses the definite article when referring to exposure to asbestos dust in defining the second precondition to enliven the presumption (“the exposure … to asbestos dust”), it does not use either the definite or indefinite article when referring to exposure as the subject matter of the presumed knowledge (“exposure to asbestos dust”). The presumed knowledge is simply that exposure to asbestos dust could result in a dust disease, not a given level of exposure to asbestos dust. The fact that the presumed knowledge is of the possibility, rather than probability or certainty, of a dust disease resulting from exposure supports a construction that the presumed knowledge does not refer to a sufficient level of exposure to asbestos dust.
This construction is supported by the evident purpose of the subsection. The subsection was enacted against the background of the common law which defines the elements of causes of action, especially the cause of action of breach of duty of care. Knowledge of risk (actual or constructive) is usually an essential element in establishing breach of a duty of care.[21] If knowledge of the relevant risk is established, the enquiry proceeds to the steps which could and should have been taken by a reasonable person in the position of the defendant.[22] The evident purpose of the subsection is to create a presumption of knowledge of the relevant risk merely upon proof that the defendant carried on a prescribed process and that the process could have resulted in the exposure of the plaintiff to asbestos dust. The purpose is to aid the proof of a component of the plaintiff’s cause of action.
If a plaintiff were required to prove aliunde the level of exposure to asbestos dust which the defendant knew (or ought to have known) could result in a dust disease, the subsection would have little, if any, practical operation.
…
In conclusion, on its proper construction, where the pre-conditions are satisfied so as to enliven the presumption, section 8(2) creates a rebuttable presumption that the defendant knew at the relevant time that some (ie any) exposure to asbestos dust could result in a dust disease. BHP’s construction of the subsection should be rejected.
Stanley J took a similar view:[23]
Section 8(2) creates a rebuttable presumption. In this case the presumption is that, at a particular time, a person who carried on a prescribed industrial or commercial process that could have resulted in the exposure of another to asbestos dust, knew that exposure could result in a dust disease as defined.
In my view, as an aid to proof in a dust disease action as defined, s 8(2) is to be construed to mean that where a plaintiff has proved that, at a particular time, a person carried on a prescribed industrial or commercial process that could have resulted in the exposure of another to asbestos dust, that person is presumed to have known, at that time, that the exposure of the plaintiff to asbestos dust could result in the plaintiff contracting any or all of the pathological conditions included in the definition of “dust disease” in s 3.
In my view, such construction is consistent with the language of the subsection and consonant with the legislative purpose of the provision.
The construction contended for by the appellant, on the other hand, would scarcely assist a plaintiff in proof of a dust disease action. A presumption of a generalised knowledge on the part of a person, who carried on a prescribed industrial or commercial process that could have resulted in exposure of another to asbestos dust, that the exposure to asbestos dust could result in a dust disease, which did not extend to the exposure to which the plaintiff was subjected, would not assist the plaintiff at all. The plaintiff would still have to prove that the defendant had actual knowledge that the injured person was at risk of contracting a particular dust disease from the particular process in which the injured person had been engaged.
[21] Knowledge of risk, actual or constructive, can also be an important element going to the existence of a duty of care in other than established categories in which a duty of care arises. However, in established categories of duty of care, such as employer and employee, the existence of a duty of care is usually uncontroversial.
[22] Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 per Mason J (Stephen J and Aickin J agreeing).
[23] BHP Billiton Limited v Hamilton (2013) 117 SASR 329, 379.
BHP argued that, properly understood, the reasons of Blue and Stanley JJ identified conflicting approaches to the interpretation of section 8(2) of the Dust Diseases Act. The plaintiff, however, submitted that there was no such difference. As Blue J observed, the evident purpose of the subsection is to create a presumption of knowledge of the relevant risk merely upon proof that BHP carried on a prescribed process that could have resulted in the exposure of the plaintiff to asbestos dust. Both Blue and Stanley JJ contemplated the application of section 8(2) in the context of evidence from a plaintiff who had been exposed to asbestos dust as a result of the carrying out of a prescribed industrial process. Kourakis CJ agreed with the judgments of both Blue and Stanley JJ.
Section 8(2) operates where evidence establishes that, as a result of a prescribed process, there could be exposure of “another” to asbestos dust. The subsection contemplates that the presumption will operate in the context of “another” person. Section 4 identifies the object of the statute as the provision of access to procedures that are expeditious and unencumbered by unnecessary formalities of an evidentiary or procedural kind. The reference to “another” in section 8(2) should, it was submitted, be taken in this case to be a reference to the plaintiff. In these circumstances, the application by both Blue and Stanley JJ of the presumption in the context of “the plaintiff” is correct and consistent with the language and objects of the Act. The interpretation of section 8(2) set out in BHP Billiton Ltd v Hamilton[24] did not involve any departure from the statutory language or require any identification of the purpose of the section outside of the objects stated in section 4. In my view, this contention of BHP should be rejected.
[24] BHP Billiton Limited v Hamilton (2013) 117 SASR 329.
Foreseeability – The Evidence
On the appeal, the plaintiff submitted that the case on foreseeability was made out in any event without the aid of the statutory presumption. It was said that a review of all the evidence made it clear that the following matters were established beyond dispute: BHP required the plaintiff to work with products that it knew contained asbestos at its shipyard; BHP was in fact aware that exposure to asbestos dust in shipbuilding operations could cause dust disease; BHP took no steps to assess the plaintiff’s workplace to ascertain the extent of the hazard caused by his work with asbestos; BHP took no steps to either warn the plaintiff or reduce his exposure to asbestos dust; and, as a result of these matters, the plaintiff contracted a dust disease, mesothelioma, which ultimately caused his death.
BHP submitted that, at the time of the plaintiff’s employment, exposures below the relevant National Health and Medical Research Council recommended maximum allowable concentration were not perceived as dangerous. BHP argued that unless the plaintiff could show that the maximum allowable concentration was exceeded, the very existence of the maximum allowable concentration rebutted the presumption that any level of asbestos exposure could give rise to a risk of contracting an asbestos related disease.
BHP’s submission that the application of the recommended maximum allowable concentration to a particular workplace could determine whether or not there was a foreseeable risk of injury should be rejected. The Research Council did not intend for its schedule of recommended maximum allowable concentrations to delineate safe and dangerous concentrations. The introductory note to the Research Council schedule advised:
The values in this schedule are based on the threshold limit values recommended by the American Conference of Governmental Industrial Hygienists, and on recommendations of other authorities. They are intended as guides in the control of health hazards, not as fine lines between safe and dangerous concentrations. They represent conditions to which, it is believed, workers except hypertensive persons, may be exposed without adverse effects for eight hours a day for five days in a week. Most processes involve variable exposures, and in general, fluctuating exposures which never greatly exceed the scheduled limit are permissible if the average concentration does not exceed the limit.
The amounts by which a scheduled limit may be occasionally extended for a period without injury to health depend on several factors such as the nature of the contaminant, and of the tissue response to high concentrations, the frequency and duration of high concentrations and whether the effects are cumulative.
[Emphasis added.]
Notwithstanding the existence of the Research Council maximum allowable concentration of 5 mppcf,[25] the evidence did not establish that in 1962 the only known risk of asbestos disease occurred at exposures which exceeded 5 mppcf. In 1962, even where exposures to asbestos were below 5 mppcf, precautions were recommended by occupational hygienists and health authorities to limit exposure. This was apparently due in part to the risk that asbestos disease could still be contracted by at least some persons exposed to levels of asbestos below the maximum allowable concentration. The evidence did not establish that in 1962 the only known risk of asbestos disease occurred at exposures which exceeded 5 mppcf. BHP’s contention concerning the Research Council’s maximum allowable concentration has been unsuccessfully advanced in previous litigation on a number of occasions. In Thompson v Johnson & Johnson Pty Limited, the Full Court of the Supreme Court of Victoria observed:[26]
[25] Million particles of amorphous silica per cubic foot of air.
[26] Thompson v Johnson and Johnson Pty Ltd [1991] 2 VR 449, 494.
Whether or not the NHMRC recommended that a warning be given was not determinative of the question of reasonable care, for to accept that proposition would permit the respondents to abrogate the duty of reasonable care owed by them. It is not the response of such a body which determines whether a person in the position of the respondents is or is not negligent. That is for the courts to decide. However, it is a relevant fact to be taken into account when determining whether reasonable care has been exercised.
In BHP Billiton Ltd v Parker, Doyle CJ and White J noted:[27]
[27] BHP Billiton Ltd v Parker (2012) 113 SASR 206, 231-2.
… Its published Standard was a relevant piece of information, to be considered by BHP in the discharge of the duty of care that it owed to its workers. But, as the Judge also noted, it represented guidance and advice, and clearly was a document to be used or applied in the workplace only by someone with appropriate training and qualifications…
In BHP Billiton Ltd v Hamilton, Stanley J said:[28]
[28] BHP Billiton Ltd v Hamilton (2013) 117 SASR 329, 390-1.
… [BHP’s] reliance on the evidence relating to the contemporaneous NHMRC Standard of five mppcf is misplaced. [BHP] submits that even if the court rejected its criticisms of the trial judge’s analysis of the documents, they were not matters which [BHP] had reason to know or ought to have known, especially in light of the NHMRC Standard. Given this was the relevant maximum allowable concentration at the time, [BHP] submits it could not have known that a lower exposure experienced by the deceased could have resulted in him contracting a “dust disease” as defined. But this proposition was answered by the Full Court in BHP Billiton Ltd v Parker where Doyle CJ and White J said:
BHP knew, or should have known, exercising reasonable care, that although there were standards or guides relating to the exposure of workmen to asbestos dust and fibres, and although those guides indicated levels of exposure below which there was no appreciable risk of harm, those guides were guides only, and could not be considered as creating or establishing a “bright line” separating safe exposure from unsafe exposure.
While this finding of fact concerned the position at Whyalla in 1971 and 1972, it answers [BHP’s] proposition with equal force in relation to the position in 1964 or 1965. The NHMRC standard was no more than a guideline. It does not prove that exposure below that guideline could not cause a dust disease. Moreover to rebut the presumption on the basis of the standard, more than proof of the standard was required. Evidence was also required that:
— [BHP] had investigated the intensity of the deceased’s exposure to asbestos;
— the level of the deceased’s exposure was less than the standard; and
— [BHP] reasonably concluded on the basis of all of the material reasonably available to it that the deceased’s exposure could not result in dust disease.
[Footnotes omitted.]
The above observations, in my view, apply with equal force to BHP’s present contentions.
As discussed above, the Research Council did not intend its recommendation to be a safe level below which no risk of disease would occur. This is clear from the introductory note to the recommendation, as emphasised above. Compliance with the recommendation, in any event, could not, of itself, necessarily discharge BHP’s duty to provide a safe place of work. The Research Council publication was not intended to comprise a comprehensive review of the potential for asbestos dust to constitute a hazard in any particular workplace. BHP did not call any evidence to establish that it in fact relied upon the Research Council recommendation in 1962. There was no evidence that BHP, at any relevant time, employed an expert or person trained in the field of occupational hygiene to interpret or provide advice with respect to the Research Council recommendations, notwithstanding that BHP and its subsidiaries employed in excess of 40,000 people in 1962.
BHP further submitted that the evidence of Mr Douglas, the industrial advocate for BHP at a relevant time, established that it was BHP’s belief in 1962 that painters and dockers, including the plaintiff, were not at risk of contracting an asbestos related disease.
Mr Douglas appeared as an industrial advocate on behalf of BHP in Commonwealth Conciliation and Arbitration Commission proceedings held in 1962. At the time, Mr Douglas was the Superintendent of Industrial Relations. He had no formal qualifications in occupational health. Mr Douglas gave evidence that, in his belief, laggers who performed asbestos insulation work at the Whyalla shipyard normally did their work at night. He said that he had never seen the laggers perform their work when he visited the shipyard. Mr Douglas gave evidence that, in his belief, painters and dockers were not at risk from asbestos. This belief may have been a result of his belief that BHP employees did not work in the engine room at the same time that the laggers worked there. On this topic, the Judge observed:[29]
The amount of lagging required on a vessel such as the PJ Adams was substantial. Laggers worked seven days per week and overtime on two nights. I reject Mr Douglas’ evidence that both insulation contractors performed their work at night when very few BHP employees were working. His recollection that Bells worked at night was incorrect. His evidence that it was therefore unlikely that BHP employees would be working at the same time as laggers was also wrong. He said that he went on all of the ships at some stage of the fitting-out process including the PJ Adams. However because of the nature of his occupation one might expect that his visits were brief. His evidence was that, on such occasions, he did not remember seeing Bells’ employees on any of the ships and more particularly that he did not see them performing lagging work. He also said that when on board ships he did not see any dust generally or floating in the air to the extent that it would create a hazard to BHP employees. This evidence is unreliable given his mistaken recollection that Bells worked at night and that BHP employees did not work at the same time as Bells’ laggers.
[Footnotes omitted.]
These findings were open to the Judge. I do not consider that there is any basis to criticise her Honour’s conclusions on this topic. The Judge was entitled to find that Mr Douglas’s evidence was incapable of supporting any finding in relation to BHP’s belief, at the time, much less any exculpatory knowledge. In any event, BHP’s belief, in the absence of it being proved to be a reasonably held belief, is of no assistance to it.
[29] Van Soest v BHP Billiton Limited [2013] SADC 81, [115].
Reliance was placed on the records of the 1962 Commission proceedings as evidence of BHP’s belief in 1962 that its employees were not at risk of contracting an asbestos related disease.
A summary of relevant parts of the 1962 Commission proceedings is set out in the reasons of the Judge. These proceedings concerned a dispute in relation to provisions in the Painters and Dockers Award, including an application that asbestos be added to the categories of insulation materials that attracted a disability allowance under the award. It was said that the proceedings demonstrated that BHP’s belief at the time was that its employees were not involved with asbestos work except on rare occasions and were therefore not at risk of contracting an asbestos related disease.
The Judge found that the evidence in the 1962 Commission proceedings about the extent to which BHP employees were involved in asbestos work was not comprehensive, as it did not refer to painters and dockers undertaking cleaning duties near laggers, or to other BHP employees involved in asbestos work. The Judge observed:[30]
I find that as a result of its involvement in the 1962 CCAC proceedings BHP management at the Whyalla Shipyards knew that insulating work using asbestos in shipbuilding activities carried with it a risk of contracting asbestosis. It knew that its employees, including painters and dockers, working in machinery spaces in ships under construction worked in the vicinity of laggers using asbestos products. It also knew that its other trade employees used asbestos products. It knew that lagging produced dust. It knew that spraying limpet asbestos produced dust. It knew that asbestos dust was generally regarded as a hazardous substance. It knew that the Commissioner had recommended the use of protective equipment and adequate ventilation for employees covered by the award who were exposed to asbestos dust. It knew that its contractor, at least in its New South Wales operations, provided respirators to address what it described as a “minimal risk”. It knew that the scientific papers tendered by Mr Evans and relied upon by Mr Douglas specified 5mppcf as a threshold value for exposure below which employees were thought to be unlikely to contract asbestosis. I would add, however, that there is no evidence to suggest that in 1962 BHP knew about the existence of the 1961 NHMRC standard limit. It knew that testing for dust concentration in the workplace was available and recommended. It knew that dust testing had recently been conducted at another Australian shipyard by Dr Rathus which produced results below the NHMRC standard.
As the Judge concluded:[31]
I also conclude on the evidence of the 1962 CCAC proceedings, together with the Grierson report and the accessible material in the public domain, that there was a reasonably foreseeable risk of injury to BHP’s employees in the plaintiff’s class exposed to asbestos dust. It was not necessary that the precise injury which was in fact sustained was foreseeable. It was only necessary to show that harm of a like kind that is occasioned by the inhalation of asbestos was foreseeable[32]. On the basis of what BHP knew or ought to have known the risk of injury was not farfetched or fanciful.
It will be necessary to return to discuss the Grierson report later in these reasons.
[30] Van Soest v BHP Billiton Limited [2013] SADC 81, [316].
[31] Van Soest v BHP Billiton Limited [2013] SADC 81, [319].
[32] Stevedoring Finance Committee v Henderson (2000) 2 VR 396, [34]; Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, 332.
BHP submitted that the statutory presumption was rebutted from an analysis of the historic scientific publications, which, it was said, showed that persons such as the plaintiff were not thought to be at risk of contracting an asbestos related disease in 1962.
In relation to scientific publications, the Judge conducted a detailed review of the tendered material and then concluded:[33]
The papers set out above establish that by 1960 exposure to asbestos dust was implicated not only in the disease asbestosis but also lung cancer and mesothelioma. This is also confirmed by Dr Becklake. Her 1976 article is accepted in scientific circles as an authoritative source of the state of knowledge at various points of time of the risk of exposure to asbestos. The review of the scientific literature undertaken with her skills as an epidemiologist confirms that there was an established association between asbestosis and asbestos exposure in the 1930s. There was an established association between lung cancer and asbestos exposure by the early 1950s. In relation to mesothelioma there was a suspected association in the late 1950s and a probable association in the early 1960s. It was not until 1964 that the association was established.
For very many years asbestos dust had been known to cause life-threatening and life shortening illness. It was known for many years that the mechanism of disease was associated with the inhalation of asbestos dust and fibre, that insulation material contained asbestos, that insulation workers had suffered asbestosis and that there was some concern about the level of exposure to asbestos dust when such materials were used in shipyards and aboard ships. There had been an accepted threshold value of exposure of 5 mppcf since the 1930s with reservations being expressed over the years about the application of that level in the case of intermittent high exposure and taking into account individual susceptibility. The need to undertake dust counts to determine the level of exposure was emphasised. However concern was expressed about the reliability of dust counts in some applications. As early as the 1930s concern was expressed about risks not only to the workers undertaking the process but to other workers in the vicinity. One area in respect of which there was unanimity was that wherever there was a potential for asbestos dust exposure the well recognised and often repeated recommended steps to eliminate or minimise the dust exposure should be taken.
I find that these publications about the existence and extent of the risk posed by asbestos dust and recommendations for practical solutions were contained in International and Australian scientific, medical and industrial publications which were available in Australia through numerous libraries as set out in the affidavit of Anne Batt, a former Librarian. The appendix to her affidavit lists the publications in the plaintiff’s volume of scientific papers and where they were available in Australian libraries up to 1962.
[Footnotes omitted.]
[33] Van Soest v BHP Billiton Limited [2013] SADC 81, [204]-[206].
The Judge found that this material was either to be found in the BHP library or, alternatively, was readily available to BHP. In that regard, the Judge concluded:[34]
I infer that this was also the case in 1962. I have not had regard to any of the other post 1962 library documents tendered by the plaintiff as they are not relevant to BHP’s capacity to obtain information prior to 1962.
I also find that BHP had the capacity to access scientific, medical and industrial publications from other libraries about the risk of exposure to asbestos dust and the steps that could be taken to address that risk.
[Footnote omitted.]
[34] Van Soest v BHP Billiton Limited [2013] SADC 81, [212]-[213].
The historical publications disclose, inter alia, that: by 1930, workers in the neighbourhood of asbestos processes were identified as at risk;[35] by 1930, insulation work on board ships was also identified as a process giving rise to exposure to asbestos which required suppression;[36] by 1934, bystanders to lagging processes had been identified as suffering from asbestosis;[37] in 1943, the US Government laid down minimum requirements for safety at contract shipyards, requiring the provision of respiratory protection for work with asbestos, segregation of dusty work and the wearing of special respirators;[38] by 1946, cases of asbestosis had been reported in those applying asbestos insulation on ships and the applicability of the Dressen study to shipyard operations was questioned;[39] by 1949, the South Australian Central Board of Health had issued publications in relation to asbestosis and means of preventing inhalation of dust;[40] by 1953, problems with attempting to identify maximum allowable concentrations had been identified and individual susceptibility was raised as an issue;[41] in 1956, asbestos lagging and spraying was classified as a dangerous trade pursuant to the Declaration of Certain Trades to be Dangerous Trades, gazetted in Victoria;[42] and in 1960, Wagner, Sleggs and Marchand published a paper which identified the possibility that small exposures to asbestos, such as those visiting an asbestos mine or living near an asbestos factory, could be associated with the fatal cancer mesothelioma.[43] Two cases of mesothelioma in laggers had also been reported.[44]
[35] ERA Merewether and CV Price, Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry (HM Stationery Office, London, 1930), 20, 33.
[36] ERA Merewether and CV Price, Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry (HM Stationery Office, London, 1930), 19.
[37] W Burton Wood and S Roodhouse Gloyne, ‘Pulmonary Asbestosis – A Review of One Hundred Cases’ (December 22 1934) The Lancet 1383, 1384.
[38] ‘Minimum Requirements for Safety and Industrial Health in Contract Shipyards’ (1943) 12(4) Bulletin of Industrial Medicine 259, 261-2.
[39] WE Fliescher et al, ‘Health Survey of Pipe Covering Operation in Constructing Naval Vessels’ (1946) 28(1) Journal of Industrial Hygiene 9, 9, 13.
[40] W.E. George, ‘Dust Diseases of the Lungs and Their Prevention’ (1949) 72 Good Health 16.
[41] AIG McLaughlin, ‘The Prevention of Dust Diseases’ (11 July 1953) The Lancet 49, 52.
[42] Victoria ‘Declaration of Certain Trades to be Dangerous Trades’, Victorian Government Gazette, No 721, 11 July 1956, 1.
[43] JC Wagner, CA Sleggs and P Marchand, ‘Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province’ (1960) 17 British Journal of Industrial Medicine 260, 266-70.
[44] JC Wagner, CA Sleggs and P Marchand, ‘Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province’ (1960) 17 British Journal of Industrial Medicine 260, 269-70.
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. The risk of asbestos exposure during shipbuilding operations was questioned in the publications, and the need for the taking of precautions whenever asbestos dust was generated was the subject of repeated reference. In my view, the Judge was correct to conclude that these historical publications do not support a finding that the presumption under section 8(2) of the Dust Diseases Act had been rebutted.
The Obligation to Exercise Reasonable Care
BHP advanced a number of complaints about the Judge’s conclusions in regard to the duty that BHP was under to exercise reasonable care. Before coming to discuss the particular complaints, it is convenient to again address the general principles concerning foreseeability.
A risk which is not far-fetched or fanciful is real and therefore foreseeable. A risk which is unlikely to occur can nevertheless constitute a foreseeable risk. The level of appreciation of the risk in question which is required by the test for foreseeability is low. Foreseeability does not require foresight of the particular harm that occurred, but only of some harm of a like kind. Foreseeability can turn on knowledge of the danger of exposure to asbestos per se; it is not confined to knowledge of the dangers of exposure to high levels of asbestos or levels of asbestos above any particular standard.
The known hazardous nature of asbestos dust and the extent to which disease might not emerge for many years confirm that the risk of injury to the class of persons to which the plaintiff belonged working in confined spaces in a dusty environment was not far-fetched or fanciful. The Judge’s finding that the risk of injury was not far-fetched or fanciful was entirely justified in the proven circumstances, in particular, where BHP was wholly unaware of the actual level of asbestos exposure of persons in the position of the plaintiff. BHP had taken no steps in an attempt to measure the levels of dust and fibre.
The reasons reveal that the Judge applied the correct legal principles. The Judge had in contemplation the concept of prospective risk to the plaintiff. The Judge was aware of the need to ascertain the extent to which employees in the class to which the plaintiff belonged were exposed to asbestos dust and fibre. The Judge, when finding that the plaintiff’s exposure was light, also found that the exposure was at significant levels while the plaintiff worked on the PJ Adams.
The Judge concluded that BHP owed the plaintiff a duty to take reasonable care to establish and maintain a safe system of work and a safe place of work. This conclusion accords with the earlier referred to basic general principles to be applied in relation to the duty of care owed by an employer to an employee. The Judge, more particularly, formulated the duty which BHP owed the plaintiff as an employee working in the vicinity of laggers in the engine room as requiring BHP to ascertain the extent to which the plaintiff and employees in his class were exposed to asbestos dust and fibre and to take reasonable precautions to eliminate or minimise exposure. The Judge made it clear that her finding in relation to the duty that BHP owed was in respect of those employees working in the vicinity of laggers in the engine room.
An Absolute Duty
BHP submitted that the Judge erred in formulating BHP’s obligation with respect to the extent of the plaintiff’s exposure as an absolute duty rather than an obligation to exercise reasonable care. This complaint is unfounded. The Judge specifically referred to the need to take all reasonable precautions and further made reference to the need to consider the response required of a reasonable person. The Judge considered the extent to which each of the control measures suggested by the plaintiff were practical or cost effective. I do not consider that the Judge, at any time, formulated the duty owed by BHP as an absolute duty.
BHP contended that the Judge erred in concluding that BHP was obliged to eliminate or minimise the plaintiff’s exposure without first finding that such exposure gave rise to a reasonably foreseeable risk of asbestos related disease. This submission does not have regard to the following findings of the Judge concerning the topic of reasonable foreseeability:[45]
[45] Van Soest v BHP Billiton Limited [2013] SADC 81, [316]-[318].
I find that as a result of its involvement in the 1962 CCAC proceedings BHP management at the Whyalla Shipyards knew that insulating work using asbestos in shipbuilding activities carried with it a risk of contracting asbestosis. It knew that its employees, including painters and dockers, working in machinery spaces in ships under construction worked in the vicinity of laggers using asbestos products. It also knew that its other trade employees used asbestos products. It knew that lagging produced dust. It knew that spraying limpet asbestos produced dust. It knew that asbestos dust was generally regarded as a hazardous substance. It knew that the Commissioner had recommended the use of protective equipment and adequate ventilation for employees covered by the award who were exposed to asbestos dust. It knew that its contractor, at least in its New South Wales operations, provided respirators to address what it described as a “minimal risk”. It knew that the scientific papers tendered by Mr Evans and relied upon by Mr Douglas specified 5mppcf as a threshold value for exposure below which employees were thought to be unlikely to contract asbestosis. I would add, however, that there is no evidence to suggest that in 1962 BHP knew about the existence of the 1961 NHMRC standard limit. It knew that testing for dust concentration in the workplace was available and recommended. It knew that dust testing had recently been conducted at another Australian shipyard by Dr Rathus which produced results below the NHMRC standard.
What it did not know was the extent to which its own employees in the plaintiff’s class were exposed to asbestos dust in 1962. This could only be known if an analysis of the workplace was carried out at that time to identify potential risks arising from the use of asbestos. It did not undertake such an analysis, it did not seek advice about the extent of risk when using asbestos products for lagging in shipbuilding either through the Department of Health or using its own research facilities and it did not take steps to test the level of asbestos dust in the engineroom of the PJ Adams where lagging was being undertaken.
Without that knowledge BHP’s contention that there was no reasonably foreseeable risk of injury unless the exposure was above the NHMRC standard is not tenable. Without that knowledge BHP has not discharged the evidentiary onus of establishing that it did not know in 1962 that any exposure, or the plaintiff’s exposure, could result in dust disease. The presumption is not displaced and statutory foreseeability is established.
[Emphasis added.]
The Judge further concluded, notwithstanding that statutory foreseeability was established, that:[46]
… [O]n the evidence of the 1962 CCAC proceedings, together with the Grierson report and the accessible material in the public domain, that there was a reasonably foreseeable risk of injury to BHP’s employees in the plaintiff’s class exposed to asbestos dust. It was not necessary that the precise injury which was in fact sustained was foreseeable. It was only necessary to show that harm of a like kind that is occasioned by the inhalation of asbestos was foreseeable. On the basis of what BHP knew or ought to have known the risk of injury was not farfetched or fanciful.
This is sufficient to create a duty to ascertain the extent to which employees or any class of employees were exposed and to take all reasonable precautions to eliminate or minimise exposure. That was the relevant duty which BHP owed to the plaintiff as an employee exposed to asbestos dust in an engineroom when lagging where taking place.
[Footnote omitted.]
These extracts from the reasons demonstrate that the Judge found not only that BHP had failed to displace the section 8(2) presumption as to statutory foreseeability, but that the exposure of the plaintiff to asbestos in the course of his employment with BHP gave rise to a reasonably foreseeable risk, on the facts, of asbestos related disease. The suggestion that the Judge imposed an absolute duty should be rejected.
[46] Van Soest v BHP Billiton Limited [2013] SADC 81, [319]-[320].
The Grierson Report
It is convenient to now turn to BHP’s complaint that the finding of the Judge of a foreseeable risk of injury was not supported by the 1962 Commission proceedings, the Grierson report and other publications available in the public domain.
BHP complained that the Judge erred in having regard to what is known as the Grierson report[47] and other publications available in the public domain for the purposes of her findings in regard to reasonable foreseeability. In particular, it was said that it was wrong for the Judge to do so without finding that the material was relevantly known to, or ought reasonably have been known to, BHP.
[47] JJ Grierson, ‘Report on the Third International ILO Conference of Experts on Pneumoconiosis’ (1950).
A review of the reasons reveals that the Judge analysed and summarised in detail many relevant publications in the public domain available to BHP. The Judge found:[48]
[48] Van Soest v BHP Billiton Limited [2013] SADC 81, [206].
I find that these publications about the existence and extent of the risk posed by asbestos dust and recommendations for practical solutions were contained in International and Australian scientific, medical and industrial publications which were available in Australia through numerous libraries as set out in the affidavit of Anne Batt, a former Librarian. The appendix to her affidavit lists the publications in the plaintiff’s volume of scientific papers and where they were available in Australian libraries up to 1962.
[Footnotes omitted.]
The Judge then addressed the BHP library facilities and, in that respect, concluded:[49]
[49] Van Soest v BHP Billiton Limited [2013] SADC 81, [207]-[213].
BHP had significant library facilities leading up to 1962. In 1952 there were “steel industry technical reference libraries” located in Melbourne, Newcastle, the Kembla works and at Whyalla. The Whyalla library was instituted in 1946 and by 1952 had a large number of text books and magazines.
The purpose of the libraries was described in 1952 as follows:
“In this constantly changing world new industrial techniques, materials and equipment are continually being discovered or devised. By means of the printed word as published in newspapers, magazines and text books, the world’s technological advances are recorded and disseminated.
The steel industry’s libraries act as the organisation’s ‘eagle eye’, forever on the watch for information likely to be of service and value.
In this way, the industry’s libraries play their part in assisting the Australian steel industry to keep abreast with industrial developments at home and overseas.”
The complexity of BHP’s library facilities developed over the 1950s such that by 1959 it had technical libraries as described above, libraries attached to research facilities, specialised reference collections housed in particular departments and a library at Head Office in Melbourne containing technical and commercial publications. Libraries contained overseas publications. In the BHP Review published in October 1963 it was reported that if information was not available for a specific library such as Whyalla it could be obtained from the Central Research Library or from the Public Library. The central research library also maintained:
“… a central information service, for the Company and its subsidiaries, which has the responsibility of preparing information circulars, bibliographies and literature surveys. Virtually all journals received by the library are regularly scanned, and all items likely to be of interest to the Company are indexed and abstracted. The number of such abstracts, which are independent of other abstracts received, now exceeds 30,000 classified by subject and author.”
I infer that this was also the case in 1962. I have not had regard to any of the other post 1962 library documents tendered by the plaintiff as they are not relevant to BHP’s capacity to obtain information prior to 1962.
I also find that BHP had the capacity to access scientific, medical and industrial publications from other libraries about the risk of exposure to asbestos dust and the steps that could be taken to address that risk.
[Footnotes omitted.]
The Judge found that the Grierson report was available to senior management of BHP. This report came into existence as a result of the attendance of Mr Grierson, an employee of Australian Iron & Steel Limited, a BHP subsidiary, at the Third International Conference of Experts on Pneumoconiosis in Sydney in 1950. His report, dated 22 March 1950, was forwarded to BHP’s Superintendent of Collieries in New South Wales by letter dated 24 March 1950. The report identified a number of measures that could be taken in order to control the potential hazards associated with dust. The report specifically identified the disease asbestosis as a type of pneumoconiosis which resulted from asbestos exposure.
At trial, it was submitted that the Grierson report could not be relevant to the issue of BHP’s knowledge as there was no evidence that the report was ever disseminated to its officers in Whyalla. It was contended that the knowledge of BHP’s Superintendent of Collieries in New South Wales could not be determinative of the knowledge of BHP in Whyalla. The Judge rejected this contention, finding that BHP’s Superintendent of Collieries in New South Wales was an employee of BHP with some seniority and responsibility within management.
On the appeal, the plaintiff submitted that the Judge was entitled to infer that BHP’s Superintendent of Collieries in New South Wales would have had a general knowledge about BHP’s operations and therefore had the capacity to understand the material and its potential implications for BHP’s operations. It was argued that given the size of BHP, the Judge was entitled to infer that BHP would have had a system in place by 1960 in relation to the dissemination of information to relevant personnel. This was said to be evident from the way in which BHP organised information sharing in its libraries in the relevant period. The Judge was entitled to find that officers of BHP at Whyalla would have had the knowledge contained in the Grierson report at a point prior to 1962. Finally, it was said that the Judge’s conclusion was consistent with the concession made by BHP at trial that BHP knew that asbestos was a general industrial hazard in 1962.
In my view, the plaintiff’s submissions should be accepted. I consider that the Grierson report was relevant evidence to be weighed by the Judge when addressing the question of BHP’s knowledge and what was, or should have been, reasonably foreseeable to it.
The 1962 Commission Proceedings
A detailed account of the 1962 Commission proceedings is set out in the Judge’s reasons. The proceedings involved a claim by the Federated Ship Painters and Dockers Union of Australia for a disability allowance under clause 9(a)(ii) of the Ship Painters & Dockers Award 1960 in relation to work with asbestos. The claim was made on the basis that asbestos was similar to, or of a like nature to, “silicate of cotton, insulwool or other loose material of a like nature” in their irritant properties, and for which clause 9(a)(ii) of the Award provided a disability allowance. The claim was initially made in December 1961 in relation to work being carried out on a vessel under construction in Brisbane. In February 1962, the Chairman of the Board of Reference determined that asbestos was not of a like nature to silicate of cotton or insulwool and the claim was refused.
In April 1962, an application in the Commonwealth Conciliation and Arbitration Commission was brought by the Federated Ship Painters and Dockers Union to vary a number of award provisions to include asbestos as an insulation material to which the disability rate applied. The first hearing of the application was on 8 May 1962 at which time the matter was adjourned for inspections to be carried out concerning the work involved. On 10 May 1962, an inspection was carried out at Cockatoo Dockyards in Sydney where the lagging shop was inspected and lagging being put through a band saw was inspected. On 21 June 1962, an inspection was carried out at Barker & Co Pty Ltd in Brisbane, where the application of limpet asbestos was inspected. The operator of the spray machine during the inspection said he always wore a respirator. On 5 July 1962, an inspection of work was carried out at Newcastle, which included lagging work being carried out in the engine room.
On 11 July 1962, work was inspected at the Whyalla Shipyard. The PJ Adams was under construction and inspected. However, no insulation work was inspected.
The industrial advocate representing BHP, Mr Douglas, called two witnesses at the Whyalla hearing: John McLaren, Chief Shipyard Supervisor; and John Keith Richards, the BHP Superintendent of Safety. Mr McLaren confirmed in evidence that respirators were supplied to employees engaged in wire brushing work, another type of work that was the subject of the Union’s claim. In cross-examination, Mr McLaren conceded that although the contracted laggers, Bells, were supplied with safety regulations, he did not know if they complied in relation to working with asbestos or lagging. Mr McLaren also gave evidence in cross-examination that ventilation systems were available in relation to work performed by painters and dockers in the tank. Mr Richards gave evidence in relation to the type of respirators that were available at BHP when asked questions in relation to the wire brushing work in question.
During the course of the hearing, the Union advocate, Mr Gordon, tendered articles entitled “Beware of Asbestosis” and “Warning on Dust Disease”. Mr Gordon then called Francis Samuel Lewis, a painter and docker who had been affected by asbestos. Mr Gordon also tendered letters and documents dealing with the health of Mr Lewis. The substance of the evidence of Mr Lewis was that he had worked with asbestos for many years and had been diagnosed with asbestosis and was currently on compensation. Mr Lewis gave evidence that at times he wore a respirator, but that they were not always convenient and not always supplied. He also gave evidence about having regular x-rays. Mr Lewis gave detailed evidence in relation to the dusty nature of the lagging work that he performed.
Mr Gordon tendered two letters from the contractor, Bells. The letters were in reply to correspondence from the Union. One letter, dated 20 June 1958, acknowledged the risk of asbestosis to Bells employees and stated that the men have regular half yearly x-rays and that suitable respirators were always supplied. Another letter, dated 16 July 1958, recognised some element of risk in relation to exposure to asbestos and outlined precautions that Bells were implementing, including the provision of masks and regular x-rays.
The application to vary the Award was opposed and employer representatives made submissions. Mr Carney, who appeared for the State dockyard, Newcastle, made the following point in submissions:
This question of men working in the immediate vicinity, so as to be affected by the use of the material, is one which must be carefully looked at because in an engineroom on a vessel such as the one we inspected there are all sorts of trades involved apart from the laggers; there are other trades and other painters and dockers doing various tasks.
This sort of provision about working in the immediate vicinity can give rise to considerable argument so that is another reason why this Commission should approach the matter of the alleged need for a disability allowance for asbestos with extreme care.
This body of evidence fully justified the Judge’s finding regarding the level of the plaintiff’s exposure to asbestos dust, as extracted above.
In the course of his evidence, Professor Henderson, given the lack of any dust counts at the work site to provide evidence of actual exposure to asbestos, characterised the plaintiff’s exposure to asbestos using such words as “light”. Professor Henderson considered that there was no reliable information to allow the plaintiff’s level of exposure to be expressed in numerical terms. His opinion on this topic was contained in his written report of March 2012 and was in the following terms:
Given the information concerning [the plaintiff’s] alleged exposures to asbestos (mainly bystander and direct occupational exposures), comprising identified point sources of exposure, there is evidence that the information for him fulfils Criteria 1.a, 1.b and 2.
1.a.As indicated, from the work history provided, it is my assessment that [the plaintiff’s] occupational (direct and bystander) exposures to asbestos throughout his working life represented clearly identifiable above-background cumulative exposure to asbestos, almost certainly including commercial amphibole asbestos such as amosite – crocidolite; overall, I would assess his cumulative exposure as probably light in toto (probably near the upper end of the range for light exposures). However, each of his identified exposures #1 (apprentice bricklayer), #3 (Whyalla) and #4 (WA, 1974-1976) as summarised on pages 7 and 8 (and again on pages 9 and 10) would have been of a class, character and magnitude appropriate for causal attribution of mesothelioma to asbestos, had it taken place without any of the others: the possible/likely exceptions include the National Tyre (#2) and Atwood Oceanics (#5) exposures, and possibly the 1990-2005 period of self-employment (#6) – for which the proportional causal effects would likely have been miniscule in comparison to #1, #3 and #4. In the context of his total cumulative exposure, it is also my assessment that the 1962 BHP/Whyalla Shipyard exposure (#3) – although only brief and amounting to about three months (≈10-11) weeks) in toto – would have clearly been the most intense and frequent/consistent of the identified exposures.
1.b.He also has a benign tissue marker of above-background exposure in the form of pleural plaque tissue.
2.The latency intervals between the commencement of each of his employments/exposures – including the employment at BHP in the Whyalla Shipyard (1962) and the subsequent [sic] of his pleural mesothelioma in 2011 (49 years) – clearly fall into the range of latency intervals recorded for an asbestos related mesothelioma.
Therefore, it is my assessment that the information concerning [the plaintiff’s] exposures to asbestos – assuming its correctness – fulfils The Helsinki Criteria for the attribution of mesothelioma to asbestos on the basis of the asbestos exposure history plus the presence of a benign tissue marker of above-background asbestos exposure in the form of pleural plaques.
[Emphasis added. Footnote omitted.]
The plaintiff submitted that Professor Henderson's ability to express an opinion as to the plaintiff's exposure was based on his experience in assessing occupational histories in his academic and professional work. It was pointed out that Professor Henderson had confirmed in evidence that he had previously read hundreds of work histories. His opinion in assessing the plaintiff's occupational exposure history was based on his experience. Professor Henderson confirmed in evidence his opinion that it was impossible to determine the exact cumulative exposure of the plaintiff where there had been no airborne fibre concentration testing.
The Judge was entitled to accept the opinion of Professor Henderson in relation to the propensity of asbestos dust to become suspended and resuspended, as well as his characterisation of the plaintiff's level of exposure. BHP has not demonstrated any error in this respect.
BHP’s Suggested Findings on Exposure
On the topic of exposure, BHP’s notice of appeal listed the following findings that it was contended that the Judge should have made:
Her Honour ought to have:
- found that the evidence did not establish anything more than that:
o t most the [plaintiff] may have handled asbestos-based insulation products in occasional situations of exigency when specialist laggers were not available;
o the [plaintiff] may have been exposed to dust containing asbestos when assisting other trades (not including laggers) working in the engine room, but only occasionally, as a “bystander” working at some distance from the source;
o the sum of all occasions on which the [plaintiff] was exposed to asbestos-based insulation products in these ways would have amounted to much less than half of the [plaintiff’s] eleven week period of employment;
- found, on the evidence of the occupational hygienists, that the [plaintiff’s] exposure to asbestos would have been below the [maximum allowable concentration] prescribed by the [Research Council], and probably well below that standard.
The first suggested finding may be contrasted with the following finding of the Judge:[61]
…on occasions the plaintiff personally handled insulation products including dry composition powder, slurry, pipe sections and asbestos rope;
As earlier discussed, the Judge’s finding was based on an acceptance of the plaintiff’s evidence. The Judge specifically found that the plaintiff personally handled asbestos insulation materials, including composition slurry, pipe sections and rope. The Judge’s finding as to the frequency with which this occurred has been set out earlier but bears repeating in this context:[62]
However I am satisfied, on the basis of the detailed description of the cutting of pipesections, the application of rope and the hand mixing and application of slurry that, on occasions, the plaintiff did this work. It is unlikely that, after so long, he would remember those tasks in such detail unless he actually performed the work himself. This is not an unlikely scenario in a busy engineroom where the division of labour between a contract lagger and a BHP employee, directed to assist with cleaning, may not have raised the same demarcation issues as those existing between trade employees of BHP. The line may have become blurred. I find that the plaintiff undertook this work, probably on an ad hoc basis. He is mistaken that he handled asbestos products in this way for 25 to 30% of the time in the engineroom. It would have been a smaller proportion which I am unable to specify. I find that he spent most of his time in the engineroom working in close proximity to laggers and that apart from the ad hoc assistance he rendered laggers from time to time he cleaned up lagging residue, dust and debris. I find that when assisting other trades in the engineroom he was also in the vicinity of laggers.
[61] Van Soest v BHP Billiton Limited [2013] SADC 81, [122].
[62] Van Soest v BHP Billiton Limited [2013] SADC 81, [101].
The second of the suggested findings includes the assertion that the Judge should have found that the plaintiff may have been exposed to dust containing asbestos when assisting other trades, not including laggers, working in the engine room, but only occasionally as a bystander. The plaintiff on the appeal pointed out that this suggested finding failed to have regard to the primary task that the plaintiff performed in the engine room, namely, cleaning. That cleaning work, as discussed earlier, required the plaintiff to clean up asbestos dust and debris as a result of the work of the laggers and sprayers in the engine room. It was suggested that the work the plaintiff performed when sweeping and cleaning up after laggers and sprayers was not bystander exposure. As the Judge found:[63]
… The plaintiff had two types of exposure. Sweeping produced dust and in that sense it was close proximity exposure but, as it was undertaken when laggers were working in the vicinity, it was also bystander exposure.
[63] Van Soest v BHP Billiton Limited [2013] SADC 81, [436].
The further aspect of this suggested finding was that the plaintiff was only occasionally exposed to asbestos dust while in the engine room. This suggested finding is at odds with the evidence, as accepted by the Judge, that the lagging was a continuing operation which overlapped completely with the plaintiff’s period of employment with BHP.
The third suggested finding contains the assertion that the plaintiff had spent much less than half of his period of employment exposed to asbestos. Such a finding would be inconsistent with the plaintiff’s evidence, as discussed above, and that of other witnesses. There was evidence to support the Judge’s finding that the plaintiff spent 50 per cent of his time in the engine room. There was a body of evidence that one of the primary tasks of a painter and docker was to clean the engine room. Further, as discussed above, there was the evidence of the continuous nature of the lagging work and the overlap of this work with the entirety of the plaintiff’s period of employment.
The final finding suggested is that the plaintiff’s exposure to asbestos would have been below the maximum allowable concentration prescribed by the Research Council and probably well below that level. As discussed earlier, there was no evidence in relation to the actual level of dust in the air in the engine room of the PJ Adams, nor was there any evidence as to the actual level of exposure of the plaintiff. In my view, such a finding as suggested was not open on the evidence. It is also relevant to note the plaintiff’s submission that, in any event, even had the exposure fallen below the maximum allowable concentration, this would not have determined the issue of breach of duty. I agree with the following observations by the Judge:[64]
Dust measurements could and should have been taken in 1962 so that the extent of the risk to employees in the plaintiff’s class could be ascertained and acted upon. In the event that no testing was undertaken or indeed, even if testing revealed a level below the NHMRC standard, the overall effect of the evidence is that there were simple means available to BHP which were cost effective and which could and should have been taken in 1962 to obviate the risk to the plaintiff of contraction of a dust disease.
[64] Van Soest v BHP Billiton Limited [2013] SADC 81, [662].
Breach of Duty
BHP challenged the following finding of the Judge:[65]
The duty which BHP owed to the plaintiff, as an employee working in the vicinity of laggers in the engineroom, was to ascertain the extent to which he and employees in his class were exposed to asbestos dust and fibre and to take all reasonable precautions to eliminate or minimise exposure.
This finding of the Judge is to be understood in the context of the following remarks in her reasons:[66]
I find that as a result of its involvement in the 1962 CCAC proceedings BHP management at the Whyalla Shipyards knew that insulating work using asbestos in shipbuilding activities carried with it a risk of contracting asbestosis. It knew that its employees, including painters and dockers, working in machinery spaces in ships under construction worked in the vicinity of laggers using asbestos products. It also knew that its other trade employees used asbestos products. It knew that lagging produced dust. It knew that spraying limpet asbestos produced dust. It knew that asbestos dust was generally regarded as a hazardous substance. It knew that the Commissioner had recommended the use of protective equipment and adequate ventilation for employees covered by the award who were exposed to asbestos dust. It knew that its contractor, at least in its New South Wales operations, provided respirators to address what it described as a “minimal risk”. It knew that the scientific papers tendered by Mr Evans and relied upon by Mr Douglas specified 5mppcf as a threshold value for exposure below which employees were thought to be unlikely to contract asbestosis. I would add, however, that there is no evidence to suggest that in 1962 BHP knew about the existence of the 1961 NHMRC standard limit. It knew that testing for dust concentration in the workplace was available and recommended. It knew that dust testing had recently been conducted at another Australian shipyard by Dr Rathus which produced results below the NHMRC standard.
…
I also conclude on the evidence of the 1962 CCAC proceedings, together with the Grierson report and the accessible material in the public domain, that there was a reasonably foreseeable risk of injury to BHP’s employees in the plaintiff’s class exposed to asbestos dust. It was not necessary that the precise injury which was in fact sustained was foreseeable. It was only necessary to show that harm of a like kind that is occasioned by the inhalation of asbestos was foreseeable. On the basis of what BHP knew or ought to have known the risk of injury was not farfetched or fanciful.
[Footnote omitted.]
These findings fully justified the Judge’s conclusion that, there being a reasonably foreseeable risk of injury, BHP had an obligation to take steps to address that risk, including steps to eliminate or minimise the plaintiff’s exposure to asbestos.
[65] Van Soest v BHP Billiton Limited [2013] SADC 81, [612].
[66] Van Soest v BHP Billiton Limited [2013] SADC 81, [316], [319].
Next, BHP submitted that the Judge erred in finding that BHP ought to have undertaken sampling of airborne levels of asbestos, either by itself or through a third party. In the plaintiff’s submission, given the foreseeability of risk, the starting point was to undertake an analysis to determine the extent of the risk to persons such as the plaintiff, including the undertaking of dust counts. It was said that the overwhelming inference from the evidence tendered in the trial was that in 1962, dust counting instruments were available and could be used to measure dust in the air. Attention was drawn to the availability of persons with expertise to conduct dust counts within the Victorian Department of Health, to the fact that dust counters were available in New South Wales and to the fact that dust counters were available in Western Australia. The plaintiff also drew attention to tendered extracts from annual reports of the Department of Public Health and the Central Board of Health for South Australia for the period 1960 to 1975. It was said by the plaintiff that this exhibit revealed that, in all probability, counters would have been available in South Australia at relevant times.
The plaintiff submitted that the evidence established that, had BHP sought assistance from the Department of Public Health in South Australia, assistance would have been available to assess the extent of the dust hazard in the engine rooms of ships at the fitting out wharf at Whyalla. In any event, it was suggested that a company as well resourced as BHP would have had the ability to obtain appropriate instrumentation to make the relevant measurements.
A complaint was made by BHP about the finding of the Judge concerning the availability of publications in the public domain. That finding was in the following terms:[67]
I reject the submission that the known risk in 1962 was limited to asbestosis in persons heavily exposed and that it was not known how serious exposure could be to a person with light exposure such as the plaintiff. The extent of the risk to the plaintiff is set out in the numerous publications referred to earlier. I only need repeat that by 1955 it was known that there was a link between asbestosis and lung disease and that by 1960 asbestos exposure had been linked to mesothelioma.
I do not consider there to be any substance to this complaint. Reference has been made earlier in these reasons to the relevant publications and their availability. I consider that the Judge was entitled to reach the above conclusions on this topic.
[67] Van Soest v BHP Billiton Limited [2013] SADC 81, [659].
Another complaint relating to the issue of breach of duty concerned the following findings of the Judge in relation to advice likely to have been given by the Department of Public Health in 1962:[68]
Mr Kottek’s view about how the standard would have been applied by an occupational hygienist is borne out by the 1968 Wilson report in which no testing was undertaken, but on visual examination, recommendations were made to reduce the risk from minimal to negligible. I refer again to Mr Wilson’s answers in the interview with Mr Hay from which I infer that he would have taken the same approach if called upon to make an assessment based on the standard in 1962.
…
As to the nature of the risk and the reasonable response I refer again to Dr Wilson’s interview with Mr Hay in 2006. When he said:
“our attitude would be that no exposure at all would be the best thing - you cannot achieve that totally so you come back to minimal exposure and that is the idea of all those recommendations - to get rid of the stuff and make sure people are not exposed to it and if they have to be that they wear protection”.
[Footnotes omitted.]
This complaint was discussed earlier, when dealing with BHP’s ground of appeal concerning the obligation of BHP to exercise reasonable care. The Judge’s findings were open to her and those findings reflect the approach taken by the Department in the 1960s in recommending that precautions be taken to reduce and eliminate exposure, even when no testing was undertaken and even when the risk was thought to be minimal.
[68] Van Soest v BHP Billiton Limited [2013] SADC 81, [640], [660].
BHP further complained that the Judge should have determined the issue of breach of duty of care by first determining the nature and extent of the risks to the plaintiff which a reasonable investigation would have revealed.
It was contended by the plaintiff that this submission overlooked the following finding of the Judge:[69]
I also conclude on the evidence of the 1962 CCAC proceedings, together with the Grierson report and the accessible material in the public domain, that there was a reasonably foreseeable risk of injury to BHP’s employees in the plaintiff’s class exposed to asbestos dust. It was not necessary that the precise injury which was in fact sustained was foreseeable. It was only necessary to show that harm of a like kind that is occasioned by the inhalation of asbestos was foreseeable. On the basis of what BHP knew or ought to have known the risk of injury was not farfetched or fanciful.
[Footnote omitted.]
It was also said to overlook the following further finding:[70]
It can be inferred, that had BHP sought advice from the Department of Health in 1962, it is likely that a similar risk would have been identified and similar precautionary measures recommended.
[69] Van Soest v BHP Billiton Limited [2013] SADC 81, [319].
[70] Van Soest v BHP Billiton Limited [2013] SADC 81, [348].
In summary, the plaintiff submitted that the Judge had identified the risk that was reasonably foreseeable, being a risk of contracting a dust disease as a result of working in the engine room in the vicinity of laggers, and the Judge had also identified what further investigation with the Department of Public Health would have revealed. The plaintiff also pointed out that BHP did not call any evidence to support a finding that, had an investigation been carried out in relation to the risk of exposure to the plaintiff, no risk would have been identified.
I accept the plaintiff’s submissions on this point. The criticism that the Judge failed to appropriately determine the nature and extent of the risks to the plaintiff is not made out.
BHP also contended on the appeal that the Judge’s approach to determining whether BHP had breached its duty of care was predicated on the false assumption that BHP was effectively doing nothing to protect its employees from the consequences of exposure to asbestos. Reliance was placed on evidence before the Judge as to the precautionary measures undertaken by Bells in order to minimise the exposure of employees to asbestos. BHP further contended that the Judge ought to have determined the feasibility and cost of the changes to the system of work propounded by the plaintiff.
In meeting these contentions, the plaintiff drew attention to the following findings in relation to measures which were reasonably cost effective and practical in response to the risk to the plaintiff:[71]
[71] Van Soest v BHP Billiton Limited [2013] SADC 81, [664]-[670].
Segregation of work, in terms of the time when it was performed, was possible. Such segregation was already taking place in relation to the night spraying of limpet asbestos. The fact that Mr Douglas thought there was night lagging of pipes and vessels suggests that it was not beyond the realms of the practicable. If it was, then other more cost and time efficient measures were available and should have been undertaken. The ability to do so is supported by memoranda which BHP management circulated to employees following the Wilson report in 1968. The readiness to accept the recommendations and put them into action at that time demonstrates BHP’s capacity to do so in 1962.
The measures (apart from testing) which constituted a reasonable cost effective and practicable response to the risk to the plaintiff in 1962 are as follows; an education program to warn workers of the risks associated with asbestos dust and fibre and to advise the safest way to go about their duties in the presence of asbestos insulation products. Had the plaintiff been warned he may have chosen not to work at BHP which was the ultimate outcome when he decided that the job was too riven with demarcation issues and was too dirty. As to safely performing his duties Mr Rogers said that careful sweeping could minimize dust. The plaintiff could not be expected to appreciate the importance of taking care without knowing the reason.
More assiduous supervision of the plaintiff in the performance of his duties would have also ensured that he did not actively assist laggers given that it was his evidence that he did so and that it was BHP’s position that it was not part of his duties to do so. The inference to be drawn is that he was put at greater risk than necessary because of a lack of supervision.
Supervision of BHP’s contractors, in the sense of ensuring that their lagging employees abided by BHP safety regulations whilst working at the Whyalla Shipyards would also have provided a cost effective and practicable response to the risk to the plaintiff. This is not a matter specifically relied upon by the plaintiff however the evidence establishes that BHP breached its duty to its employees when failing to supervise lagging contractors. This can be inferred from a combination of evidence in the 1962 CCAC proceedings and Mr Douglas’ evidence in these proceedings. In the 1962 proceedings Mr McLaren said that Bells were supplied with safety regulations and were required to work to those regulations in the shipyards. He was then asked whether it did so in relation to working with asbestos. His answer was “I wouldn’t know”. In these proceedings Mr Douglas said that although he was not aware of any safety regulations that were issued to Bells, it was his understanding that “all contractors with BHP there were certain standards of safety that they were required to observe”. Mr McLaren was the superintendant of the Whyalla Shipyards. If safety regulations existed concerning working with asbestos he should have known of their existence and whether they were being complied with. The inference which I draw is that there were no such safety regulations and that BHP, having contracted out the bulk of the pipe and vessel insulation and the entire spraying insulation to contractors, took no active steps to ensure that the products were handled in a manner which reduced the hazards to its own employees.
Dust suppressant measures such as the use of an industrial vacuum cleaner to remove asbestos debris and dust from the floor, scaffolding, machinery, the engineroom ribs and any other surface would have significantly reduced the amount of dust to which the plaintiff was exposed. This would have obviated the need for sweeping which disturbed dust and caused it to resuspend. Vacuuming would also have reduced the effect of foot traffic which tended to grind asbestos debris and fibres up into smaller particles likely to be resuspended and then inhaled. Industrial vacuum cleaners were effective and available as indicated by Mr Rogers.
Other work practice controls such as wetting down to reduce dust may not have been practicable in relation to the steam pipe insulation as pointed out by Mr Rogers but would have been a practicable measure in relation to debris and the settlement of dust on scaffolding, machinery, engineroom ribs and the floor. The manual handling problem associated with heavier waste could have been controlled by the size of the receptacle in which the waste was placed.
General ventilation of the engineroom may have been a more difficult control measure to put in place because of the timing of the lagging work relative to the installation and operation of the ship’s air circulation system. The evidence was that the air circulation system was not operational until later in the fit-out. Local exhaust ventilation at particular sites would be unlikely to provide a useful level of control if other workers were in the vicinity. With a large number of people working in an engineroom and laggers installing, cutting or mixing insulation products at various points in the room, local ventilation at the point source of the dust would likely increase or decrease dust concentrations for workers in the vicinity dependent upon their location relative to the ventilation source. As to this ventilation effect I accept Mr Rogers’ evidence. The physical enclosure of the work would also have been problematic. As lagging was comprehensively applied throughout the engineroom it is difficult to expect that lagging could have been physically enclosed from all other work.
However the provision and use of respirators either in conjunction with vacuum cleaners or whilst sweeping would also have provided effective personal protection from dust inhalation.
With the exception of the elimination, substitution, isolation and ventilation, and bearing in mind the qualification about segregation in time, these measures were all practicable preventative measures that BHP could and should have taken. Failing to do so breached BHP’s duty of care to the plaintiff. Therefore negligence is established.
[Footnotes omitted.]
In my view, each of these findings was open to the Judge on the evidence.
BHP also contended that the Judge failed to determine whether the changes in work practices asserted to be part of an appropriate response to the risk were reasonably required. It was submitted that an assessment of the reasonableness of any measures that could have been taken to avoid the risk required an identification of the precise nature and likelihood of the relevant risk. The Judge identified the risk of injury to BHP employees in the plaintiff’s class through an exposure to asbestos dust. The risk identified was that of contracting a dust disease. The evidence established that the dust diseases asbestosis, lung cancer and mesothelioma were known and reported in the literature by 1962. Given that the nature of the risk included serious, disabling and fatal lung disease, the measures identified by the Judge amounted to reasonable and practicable responses to the foreseeable risk.
Causation
It is convenient to again extract the text of section 8(1) of the Dust Diseases Act:
(1) If it is established in a dust disease action that a person (the injured person)—
(a) suffers or suffered from a dust disease; and
(b) was exposed to asbestos dust in circumstances in which the exposure might have caused or contributed to the disease,
it will be presumed, in the absence of proof to the contrary, that the exposure to asbestos dust caused or contributed to the injured person's dust disease.
BHP advanced several contentions in its written submissions concerning the Judge’s finding that breach of duty on the part of BHP caused or materially contributed to the plaintiff’s mesothelioma. On the appeal, the first three matters of complaint were abandoned, leaving only one contention for consideration. That complaint concerned the Judge’s finding that it was not open to BHP to argue that even if it had not been negligent, the plaintiff would or may have nevertheless developed mesothelioma.
The relevant findings of the Judge are as follows:[72]
In any event, in the absence of testing and any measures being taken, it is not open to BHP to argue that there was any “non-negligent” dust exposure.
In Cockatoo Dockyard Pty Limited v Browne, to which I have already referred, a similar point was argued. The appellant submitted that there was no evidence to support the trial judge’s finding that the breaches of duty caused or materially contributed to the plaintiff’s injury; in other words that the judge had failed to ask himself whether the taking of precautions would have made a difference. This was in the context of a fitter who had been exposed to asbestos and other dust in two workplaces, the turbine shop and in confined spaces in enginerooms of ships at the appellant’s dockyard. The trial judge had found that no precautions had been taken during the period of the plaintiff’s employment and that there were measures which were available.
…
In dismissing the employer’s appeal Handley JA said where an employer has taken no steps to minimise a foreseeable risk of injury to his employees and no steps to measure the extent of the hazard its own breaches of duty prevent it from discharging the evidentiary onus that its breaches had no effect or that the injury would have occurred even if the duty had been performed.
[Footnotes omitted.]
[72] Van Soest v BHP Billiton Limited [2013] SADC 81, [701]-[702].
BHP submitted that the decision in Cockatoo Dockyard Pty Limited v Browne[73] is a decision of dubious authority. No authority was cited to support this contention and, as the plaintiff pointed out, the decision has been applied by Judges at first instance for more than a decade. The plaintiff also submitted that the approach in Browne was supported by the later New South Wales Court of Appeal decision in Dasreef Pty Ltd v Hawchar, where Allsop P observed:[74]
I do not agree. First, this is a question of fact. There is no legal principle requiring the primary judge to give credit in the way suggested. Secondly, whilst it can be expected that Mr Hawchar would have undergone some exposure to silica dust if Dasreef had not been negligent, there was no evidence as to what that was and the primary judge approached the matter on the basis that, factually, all Mr Hawchar’s exposure at Dasreef’s premises was through the negligence of Dasreef. Given the lack of a clear factual basis compelling a different approach, there can be no argument with that approach in this Court.
It was also pointed out that the same reasoning was applied by the trial Judge in Parker v BHP Billiton Limited.[75]An appeal from that judgment was allowed on an unrelated point.[76]
[73] Cockatoo Dockyard Pty Ltd v Browne [2001] NSWCA 58.
[74] Dasreef Pty Ltd v Hawchar [2010] NSWCA 154, [58].
[75] Parker v BHP Billiton Limited [2011] SADC 104, [857].
[76] BHP Billiton Limited v Parker (2012) 113 SASR 206.
I consider there to be no substance to this criticism advanced by BHP. On the evidence, the exposure of the plaintiff to asbestos while in the employ of BHP was established to be a material cause of his contracting the dust disease.
Conclusion
In my view, the complaints advanced by BHP should be rejected. The Judge’s findings were open on the evidence. No basis has been established that would permit any of those findings to be rejected. I would dismiss the appeal.
NICHOLSON J.
I agree that the appeal should be dismissed for the reasons given by Gray J.
BAMPTON J: I agree with the reasons of Gray J and would dismiss the appeal.
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