BHP Billiton Limited v Van Soest

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.