BHP Billiton Limited v Van Soest - [2014] SASCFC 135

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] SASCFC 135
Decision Date: 19 December 2014

CaseChat Overview and Summary

The Full Court of the Supreme Court of South Australia heard an appeal by BHP Billiton Limited against a decision concerning negligence. The dispute arose from a claim by the plaintiff, who alleged that his employer, BHP Billiton, owed him a duty of care regarding exposure to asbestos dust during his employment, which ultimately led to him contracting a dust disease.

The primary legal issues before the court were whether BHP Billiton breached its duty of care to the plaintiff by failing to take reasonable steps to prevent exposure to asbestos dust, and whether the plaintiff's exposure to asbestos was a material cause of his contracting a dust disease. Central to the appeal was the interpretation and application of a statutory presumption regarding asbestos exposure and the relevance of recommended maximum allowable concentrations for asbestos dust in determining foreseeability of harm.

The Court rejected BHP Billiton's submission that the recommended maximum allowable concentration of asbestos dust by the National Health and Medical Research Council (NHMRC) could determine whether a foreseeable risk of injury existed. The Court reasoned that the NHMRC's schedule was intended as a guide for controlling health hazards, not as a definitive line between safe and dangerous concentrations. The introductory note to the schedule explicitly stated that the values represented conditions to which workers could be exposed without adverse effects under specific circumstances, but acknowledged that fluctuating exposures and cumulative effects were factors to consider. The Court found that even if exposures were below the recommended maximum allowable concentration, precautions were still advised by occupational hygienists and health authorities due to the risk of contracting asbestos-related diseases. Previous case law was cited to support the principle that such guidelines are not determinative of negligence, and that a defendant must do more than simply prove adherence to a standard; they must also demonstrate that they investigated the intensity of exposure and reasonably concluded that it could not result in disease.

The Court concluded that the plaintiff's exposure to asbestos while employed by BHP Billiton was established as a material cause of his contracting a dust disease. The criticisms advanced by BHP Billiton were found to be without substance, and the trial judge's findings were open on the evidence. Accordingly, the appeal was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.]

Decision

Reasons for decision

GRAY J NICHOLSON J (dissent)

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. 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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J,

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.