(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Stanley)
15 August 2013
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - DANGEROUS THINGS OR SUBSTANCES
TORTS - NEGLIGENCE - DANGEROUS AND INJURIOUS THINGS, ETC - BREACH OF DUTY OF CARE
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DAMAGE - CAUSATION - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - PREVAILING STANDARDS OF GENERAL DAMAGES
Mrs Hamilton (as executor and in her own right) sued BHP Billiton Ltd in the District Court for damages for negligence leading to Mr Hamilton’s contraction of mesothelioma and ultimately his death. The trial Judge upheld the claim and awarded damages, which included damages for pain and suffering and loss of amenities of life of $115,000.
BHP appeals against the judgment on liability contending that the trial Judge erred in concluding that:
1. BHP breached its duty of care to Mr Hamilton; and
2. BHP’s breach of duty (if established) caused or contributed to Mr Hamilton’s contraction of mesothelioma.
Mrs Hamilton cross-appeals on quantum contending that the trial Judge’s award of $115,000 for pain, suffering and loss of amenities of life was manifestly inadequate.
Held by the Court dismissing the appeal:
As to negligence:
1. On its proper construction, where the pre-conditions are satisfied so as to enliven the presumption, s 8(2) of the Dust Diseases Act 2005 (SA) creates a rebuttable presumption that the defendant knew at the relevant time that some (ie any) exposure 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 of the Act (at [16]-[26] per Blue J and [201]-[207] per Stanley J, Kourakis CJ agreeing).
2. The pre-conditions having been satisfied by the evidence led at trial, that presumption was engaged (at [27] per Blue J and [227]-[234] per Stanley J, Kourakis CJ agreeing).
3. The trial Judge correctly found that BHP had failed to rebut the presumption (at [31]-[48] per Blue J and [239]-[248] per Stanley J, Kourakis CJ agreeing).
4. The trial Judge correctly found that BHP was negligent in not taking steps which were available to it to reduce the inhalation of asbestos dust by its workers at Whyalla (at [53]-[56] per Blue J and [258]-[276] per Stanley J, Kourakis CJ agreeing).
As to causation:
5. Section 8(1) of the Act translates a mere possibility that a plaintiff’s exposure to asbestos dust resulting from a defendant’s negligence might have caused or contributed to his or her dust disease into an actuality or finding that the exposure did cause or contribute…
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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AGLC
BHP Billiton Ltd v Hamilton [2013] SASCFC 75
Case
[2013] SASCFC 75
Decision Date
CaseChat Overview and Summary
In BHP Billiton Ltd v Hamilton, the Full Court of the Supreme Court of South Australia considered an appeal and cross-appeal concerning a finding of negligence and the assessment of damages for personal injury. The appellant, BHP Billiton Ltd, appealed against a finding of negligence and causation, while the respondent, Mrs Hamilton (representing the estate of Mr Hamilton), cross-appealed against the quantum of damages awarded for pain, suffering, and loss of amenities.
The primary legal issues before the court were whether the trial judge had erred in finding that BHP was negligent in its duty of care towards Mr Hamilton, whether BHP's negligence caused Mr Hamilton's contraction of mesothelioma, and whether the damages awarded for pain, suffering, and loss of amenities were manifestly inadequate. The court also considered the application and effect of a statutory presumption of causation in asbestos-related claims.
The Full Court, with Kourakis CJ agreeing, dismissed BHP's appeal, finding that the trial judge's conclusions regarding negligence were inevitable given the findings of knowledge of risk and the availability of precautionary measures. The court affirmed that a breach of duty is a cause of injury if it materially contributed to it, and that at common law, it must be proved on the balance of probabilities that the defendant's conduct caused or materially contributed to the injury. Regarding damages, the court held that it was permissible to have regard to comparable awards in other jurisdictions when assessing whether an award was manifestly inadequate or excessive. The court concluded that the initial assessment of $115,000 for pain, suffering, and loss of amenities was manifestly inadequate and re-assessed this amount at $190,000.
Orders
Orders of the court
Held by the Court allowing the cross-appeal:
1. In considering whether an award in this State is manifestly inadequate or excessive, it is permissible to have appropriate regard to appropriate awards in comparable cases at first instance and on appeal in this jurisdiction and other jurisdictions (at [101]-[118] per Blue J and [317]-[318] per Stanley J, Kourakis CJ agreeing).
2. The general level of damages for pain, suffering and loss of amenities in terminal illness cases such as Ewins v BHP Billiton Ltd (2005) 91 SASR 303 should be increased (at [140] per Blue J and [328] per Stanley J, Kourakis CJ agreeing).
3. The assessment of damages in Mr Hamilton’s case of $115,000 for pain, suffering and loss of amenities was manifestly inadequate (at [140] per Blue J and [328] per Stanley J, Kourakis CJ agreeing).
4. Damages for pain, suffering and loss of amenities is re-assessed at $190,000 (at [147] per Blue J and [330] per Stanley J, Kourakis CJ agreeing).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
BHP has not demonstrated material error by the trial Judge. On the contrary, his conclusions concerning the response of a reasonable employer in BHP’s position were inevitable once the findings of knowledge of risk and availability of precautionary measures had been made. Conclusion on negligence The trial Judge correctly found that BHP was negligent in not taking the various steps identified by him to reduce the inhalation of asbestos dust by its workers at Whyalla. Causation BHP contends that the trial Judge made a series of errors in reaching his conclusion that BHP’s negligence caused the contraction of mesothelioma by Mr Hamilton. The issues concerning causation are whether the trial Judge erred:a)in finding that the precondition for the presumption under section 8(1) of the Act was established that Mr Hamilton’s relevant exposure to asbestos dust might have caused or contributed to his mesothelioma;b)in finding that BHP had not rebutted the presumption;c)in finding in the alternative that Mrs Hamilton had proved that BHP’s negligence had caused or contributed to Mr Hamilton’s contraction of mesothelioma in accordance with common law principles.Statutory presumption of causation Section 8(1) is enacted against the background and in the context of the common law principles which define causation as an essential element of the relevant cause of action, especially the cause of action of breach of duty of care. To establish causation, it is sufficient that the breach of duty is a cause of the injury; it need not be the sole or principal cause.[29] A particular application of that approach to causation is that it is sufficient, where there are multiple causes of a disease or injury, that the defendant’s conduct materially contributed to the contraction of the disease or occurrence of the injury.[30] [29] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 509 per Mason CJ (Toohey J and Gaudron J agreeing) and 521-524 per Deane J (Gaudron J agreeing).[30] Wakeline v London and South Western Railway Co (1886) 12 App Cas 41 at 47 per Lord Watson; Amaca Pty Ltd v Booth [2011] HCA 53; (2011) 246 CLR 36 at [70] per Gummow, Hayne and Crennan JJ. At common law, establishing merely that it is possible that the defendant’s conduct was a cause of (or materially contributed to) the disease or injury is insufficient: it must be proved in accordance with the civil onus that it is probable that the defendant’s conduct was a cause of (or materially contributed to) the plaintiff’s disease or illness.[31] There is also a distinction between a mere prospective risk that the defendant’s conduct might cause injury to the plaintiff and the possibility or probability that the defendant’s conduct assessed in retrospect did in fact cause the injury suffered by the plaintiff.[32] This is not to say that, as an evidentiary matter, proof of risk of injury coupled with other circumstances may not be sufficient to prove causation on the balance of probabilities.[33][31] Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111 at [51] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Amaca Pty Ltd v Booth (2011) 246 CLR 36 at [69]-[71] per Gummow, Hayne and Crennan JJ.[32] Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALJR 870 at [144] per Kiefel J; Amaca Pty Ltd v Booth (2011) 246 CLR 36 at [41] per French CJ.[33] Betts v Whittingslowe (1945) 71 CLR 637 at 649 per Dixon J; Amaca Pty Ltd v Booth (2011) 246 CLR 36 at [42]-[50] per French CJ.