BHP Billiton Ltd v Parker - [2012] SASCFC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
BHP BILLITON LIMITED v PARKER
[2012] SASCFC 73
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)
18 June 2012
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - FINDINGS ON ISSUE OF NEGLIGENCE
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - 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 - DAMAGE - CAUSATION - GENERALLY
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - METHOD OF ASSESSMENT
DAMAGES - GENERAL PRINCIPLES - EXEMPLARY, PUNITIVE AND AGGRAVATED DAMAGES
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES - PRINCIPLES AND MODE OF APPORTIONMENT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - PARTICULAR CASES - OTHER MATTERS - COSTS
The appellant employed the respondent as a shipwright at its Whyalla shipyard – the respondent was exposed to asbestos dust and fibres resulting from the use by other workers of products containing asbestos – the respondent had been exposed to asbestos dust and fibres when performing the same type of work in a shipyard in the United Kingdom – a District Court Judge found the appellant liable in negligence for causing the respondent an asbestos related disease.
The appellant accepted that it owed the respondent a duty of care and accepted that he had an asbestos related disease – the appellant challenged the Judge’s findings that it had breached its duty of care and that it had caused the respondent’s asbestos related disease – the appellant appealed against the assessment of damages and the Judge's award of costs to the respondent on an indemnity basis.
Held: dismissing the appeal against the finding of liability, the evidence established that the appellant allowed the respondent to work in a workplace in which asbestos products were being used, and in which asbestos dust and fibres were likely to be present in the atmosphere - there was a well known risk of serious harm as a result of exposure to asbestos dust and fibres - the Judge’s finding that the risk of harm to workers was foreseeable was appropriate – the appellant had not taken steps which were reasonably available to measure the quantity of asbestos dust and fibres in the atmosphere or to prevent or reduce the dust and fibres - it was not necessary for the respondent to establish that the level of dust and fibres in the workplace atmosphere exceeded the National Health and Medical Research Council Standard.
The trial Judge was correct, having regard to s 8(1) of the Dust Diseases Act 2005 (SA), to find that the exposure to asbestos in the appellant's employment caused or contributed to the respondent’s asbestos related disease.
Held (Doyle CJ and White J), dismissing the appeal against the award of damages: although the Judge erred in his approach to the assessment of damages, the award was not excessive – the Judge did not err in the apportionment between the respondent's exposure to asbestos in the United Kingdom and the exposure in his employment with the appellant – the Judge was correct, having regard to s 9(2) of the Dust Diseases Act 2005 (SA) to award exemplary damages and did not err in assessment of those damages - the respondent was obliged to give credit to the appellant for the amount he recovered from the second defendant.
(Gray J): the trial Judge adopted an erroneous approach to the assessment of damages – the erroneous approach led the Judge to fail to address properly the respondent’s non-compensable non-respiratory medical conditions – the trial Judge erred in assessing damages when separate tortfeasors had contributed to the respondent’s dust disease – the trial Judge should not have awarded exemplary damages on the basis of what appeared to be mala fides – it was not appropriate to award exemplary damages – compensatory damages for the respondent’s asbestos disease reassessed.
Held (Doyle CJ and White J) allowing the appeal against the costs order: the Judge was correct in holding that the appellant had acted imprudently - appropriate to depart from usual basis for costs orders - Judge erred in awarding costs on indemnity basis - order varied to provide appellant pay respondent's costs on solicitor and client basis from 14 March 2012.
(Gray J): Would hear the parties on costs and interest.
Appeal against liability and against the assessment of damages dismissed.
Appeal against costs allowed.
Dust Diseases Act 2005 (SA) s 8(1), s 8(2), s 9(1), s 9(2), s 9(3); Dust Diseases Regulations 2009 (SA) Schedule 1 item 6(a), Schedule 1 item 7(a), Schedule 1 item 8(a); Evidence Act 1929 (SA) s 34C, s 34C(3), s 45B; District Court Civil Rules 2006 (SA) r 187(3)(a), r 188(1), r 188(2), r 263(3), referred to.
Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635; Purkess v Crittenden (1965) 114 CLR 164; Watts v Rake (1960) 108 CLR 158, applied.
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839; Lamb v Cotogno (1987) 164 CLR 1; Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330; State of New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486; The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40, discussed.
Abalos v Australian Postal Commission (1990) 171 CLR 167; Abel v Amaca Pty Ltd [2010] SADC 98; Baker v Quantum Clothing Group Ltd [2011] UKSC 17; Beckwith v The Queen (1976) 135 CLR 569; Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192; Devries v Australian National Railways Commission (1993) 177 CLR 472; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; Fox v Percy (2003) 214 CLR 118; Gray v Motor Accident Commission [1988] HCA 70; (1988) 196 CLR 1; Griffiths v Kerkemeyer (1977) 139 CLR 161; Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18; Jones v Hyde (1989) 63 ALJR 349; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 85 ALJR 533; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; McLean v Tedman (1984) 155 CLR 306; Morris v McEwen [2007] SASC 284; (2005) 92 SASR 281; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85; Parker v BHP Billiton Ltd (No 2) [2011] SADC 175; Pirrotta v Citibank Ltd (1998) 72 SASR 259; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Cooke [2003] SASC 403; Smith v Broken Hill Pty Co Ltd (1957) 97 CLR 337; South Australian Housing Trust v Development Assessment Commission & Anor (1994) 63 SASR 35; Stokes v Guest, Keen & Nettlefold (Bolts & Nuts) Ltd [1968] 1 WLR 1776; Sullivan v Gordon (1999) 47 NSWLR 319; Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405; Trevorrow v State of South Australia (No 5) [2007] SASC 285; (2007) 98 SASR 136; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422; Warren v Coombes (1979) 142 CLR 531; Waugh v Kippen (1986) 160 CLR 156; Weinest v Schmidt [2002] SASC 340; (2002) 84 SASR 307; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448; Whitfield v De Laurent & Co Ltd (1920) 29 CLR 71, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
""National Health and Medical Research Council Standards", "Dust Disease", "Asbestos Related Disease""

BHP BILLITON LIMITED v PARKER
[2012] SASCFC 73
Full Court: Doyle CJ, Gray and White JJ

DOYLE CJ and WHITE J. After a lengthy trial a District Court Judge entered judgment for Mr Parker against BHP Billiton Limited (BHP): Parker v BHP Billiton Limited [2011] SADC 104. The Judge found that BHP’s negligence was the cause of Mr Parker suffering an asbestos related illness. The Judge assessed Mr Parker’s damages and entered judgment for the amount as assessed.
Summary of the case
BHP employed Mr Parker as a shipwright at its shipbuilding yard in Whyalla for a number of years. The case relates to a limited period in 1971 and 1972 when Mr Parker was restricted to light work as a result of an injury. During this period Mr Parker carried out work at the wharf where ships were fitted out. Mr Parker was exposed to asbestos dust and fibres resulting from the use by other workers of products containing asbestos used in the fitting out of ships. The period of exposure is uncertain. It was probably not more than about six months. The fact of exposure to asbestos dust and fibres is not in dispute, but the period during which this occurred, and the intensity or level of exposure is in dispute.
The Judge found that Mr Parker was suffering from asbestos related diseases: reasons at [850]. That finding is not now challenged.
BHP accepted that it owed to Mr Parker a duty of care: reasons at [313].
The Judge found that there was a reasonably foreseeable risk of harm to Mr Parker. He posed this issue at [314]-[315]. The Judge made findings of fact relating to conditions at the workplace, in particular at [155], at [295]-[311] and at [768]:
[155]I prefer the evidence of Mr Ewbank on this point. He was a worker of substantial experience. He worked at the shipyards doing the lagging work for many years. As the plaintiff submitted the document does not prove that the seven weeks mentioned were consecutive. As Mr Ewbank himself said he had the “occasional week off”.
…
[295]I accept that the plaintiff and the lay witnesses were truthful. There was no attempt to mislead me. Not only were they truthful they were also credible and reliable. In my opinion looking at the evidence in its entirety, there was a consistency about the evidence which was cohesive and compelling. There were a few minor inconsistencies but nothing more than would be expected with the passage of time. There were from time to time differences in emphasis but on the whole they were describing what I find was a very dusty working environment.
[296]The description of the activities of the laggers was generally consistent including how they went about their work. As mentioned, Mr Ewbank was a most impressive witness and I find his evidence not only truthful but credible and reliable. Mr Ewbank received support from other evidence as already discussed.
[297]Further, there was no oral evidence from the defendant to contradict the plaintiff’s witnesses. That is not a criticism nor is it a suggestion that I could draw any inferences from the position adopted by the defendant of not calling any lay oral evidence. It is simply an observation, namely that the evidence from the plaintiff and his witnesses was not contradicted.
[298]The defendant sought to rely on documentary evidence. The documents tendered are found in Exhibit D9. Apart from the “Wilson Report” (with which I deal later in these reasons) there was little documentary evidence upon which a court could find any facts or indeed draw inferences from in any event. For reasons that I discuss later, I do not accept that the “Wilson Report” can be relied upon to assist in assessing the “working conditions” on the ships.
[299]The documents contained within Exhibit D9 do not, in my view, cast doubt on the evidence of the witnesses.
[300]From the evidence of the plaintiff and his witnesses I make the following findings of fact.
[301]The plaintiff was employed by the defendant on light duties in 1971/72. As he was on light duties, at the direction of his employer, he worked regularly on a ship or ships at the fit-out wharf. Limpet asbestos was sprayed on the ships although this was sprayed at night. Asbestos lagging was installed on the ships at the fit-out wharf. Marinite containing asbestos was used on the ships.
[302]In order to install the “lagging” asbestos pipe sections were cut in the hold of the ships creating dust. Marinite sheets were also cut on board the ships creating dust. The asbestos slurry used in relation to the lagging was sometimes mixed on the wharf but also regularly mixed on board the ships. This was a dusty process. Asbestos rope was also used on the ships. Lagging of pipes and other areas occurred for most of the time a ship was at the fit-out wharf. Tasks were performed by other workers on scaffolding.
[303]Asbestos mattresses were used on board the ships and also, to some extent, made on board the ships. The evidence does not allow me to find that this was other than an occasional activity. I ignore the evidence of “mattresses” when coming to my conclusions.
[304]Leaving aside the spraying at night of limpet asbestos, asbestos dust and fibre was released into the atmosphere as a result of the other processes mentioned. This occurred while people, such as Mr Parker, were working alongside those trades or at least nearby.
[305]The spraying of limpet asbestos at night left overspray of asbestos on the floor. This was present while people were working in those areas during the day. While the painters and dockers were employed to keep the areas clean, other trades would from time to time, clean the areas in which they were working.
[306]The sweeping or clean up of the debris caused asbestos dust and fibre to become airborne. No industrial vacuum cleaners were used. The atmosphere became very dusty.
[307]No attempt was made to suppress the dust generated by “wetting” it.
[308]I find that the work conducted at the “fit-out wharf” was performed in a very similar manner for many years. Certainly by 1971/72 the way the work was performed had not changed to any significant degree for many years.
[309]I find that no respirator and/or mask were provided to the plaintiff. He was not warned of the dangers of working in an area where asbestos dust/fibre was being released into the atmosphere.
[310]No mechanical ventilation was generally operating for the clearing of dust. There may have been occasional mechanical ventilation operating while “welding” operations were occurring.
[311]Mr Parker was exposed to all of these potential sources of asbestos while working at the fit-out wharf. He said he worked there regularly when on light duties. I did not take that to mean permanently. His evidence was no more specific than that.
…
[768]I have accepted the plaintiff and the other witnesses as to the conditions under which they worked. It was a dusty environment. I find that the plaintiff worked, as found, in employment where he had regular exposure to asbestos dust while on light duties. Indeed I accept that often there were visible levels of dust and that dust almost certainly included respirable asbestos fibre. I am unable to make a positive finding as to whether such an observation means that the amount of “dust” in the air would lead to a conclusion that the NHMRC standards were necessarily breached. I am unable to say what the actual level of exposure to the plaintiff was. However I find that the defendant, prior to 1972 made no attempt to measure the “dust” levels at their dockyard. It, quite simply, had no idea itself of what the exposure levels were. I have rejected the evidence of the attempt by Mr Rogers to “reconstruct” the level.
The Judge then concluded:
[769]I find that as at 1971/72 that the defendant ought to have known or ought reasonably have foreseen that:
1     The use by it of asbestos products as part of its shipbuilding activities at Whyalla would release into the atmosphere respirable asbestos fibres/dust in the vicinity of their employees who were working on the ship while it was at the fit out wharf.
2     Workers such as the plaintiff would, in the course of their work, be exposed to a level of respirable asbestos fibres/dust.
3     By 1971/72 it was established scientifically that exposure to respirable asbestos fibre could give rise to the risk of a life threatening disease or a serious debilitating disease. This risk was certainly not far fetched or fanciful.
4     Such scientific material was readily available and generally in the public domain.
[770]I find that taking all those matters into account the fact that a risk of harm would be created or contributed to by the acts or omissions of the defendant was reasonably foreseeable.
The Judge also found that BHP breached its duty of care. He posed the issue at [316]-[321] and at [771]-[775]. The Judge made the following findings of fact:
[776]I find that it was not until after 1972 that the defendant instituted any system of “dust sampling” to ascertain the level of respirable asbestos fibre in the workplace. Equipment for testing was available and indeed had been available for some time. …
[777]Taken in conjunction with the Wilson report, I am satisfied that no “sampling” was done until after 1972.
[778]No witness gave evidence of seeing any dust sampling taking place.
[779]Sampling should have been conducted. The use of asbestos related products and the fact that the work environment was “dusty” clearly called for measures to be taken.
[780]To identify potential risks to their employees the defendant need to know what the components of the dust were, the concentration of the various components and the proximity of its employees to that dust. From the evidence of the plaintiff and his lay witnesses (and including the other evidence that supported it), I find that the defendant did not conduct any investigation (other than the Wilson report) that would have enabled them to determine appropriate measures to adopt to reduce the risk. There were means available to the defendant to sample the dust and have the samples analysed.
[781]In one sense the magnitude of the risk is unknown as there were no samples taken. The presence of dust in the air does not of itself establish, with certainty, a particular quantity of fibre/dust being present in the air. Indeed it was possible on the evidence I accepted from Mr Rogers that there could be an unacceptable level that was not visible to the naked eye.
[782]The presence of the dust certainly raises the risk that there is present in the atmosphere an unacceptable level of fibre/dust. The conditions as I have found them to be indicate the potential of a risk where dust conditions were obvious to the naked eye. The presence of the dust and over the period found in my view raises the magnitude of the risk to the employees such as the plaintiff.
[783]The defendant did not appear to take any steps (leaving aside the Wilson report) before 1973 to ascertain the risk and attempt to minimise it other than chest x-rays on some workers.
[784]Under the question of “reasonable foreseeability” I have made findings as to the state of the knowledge/literature at various times. I do not intend to repeat those matters.
[785]I have already found that the defendant knew or ought to have known that various measures could be taken to reduce the risk of exposure. The means of reducing the risk were simple.
[786]These were published in articles and to a large extent appeared in the Wilson report. They included the minimisation of exposure by warning the workers of the dangers of asbestos exposure, by supplying the workers with respirators (masks) to use, wetting down asbestos dust to minimise the dust in the air and the use of industrial vacuum cleaners to clean up the dust.
[787]I find that the defendant made no satisfactory attempt to minimise the dust exposure. While there was a “sweeping regime” in place this did not involve the use of industrial vacuum cleaners. The sweeping regime that was in place added to the dust in the air. The evidence was that there was no attempt by the defendant to wet down any of the asbestos dust not just at the stage of it being swept, but at any stage during these operations.
[788]I find there was no ventilation system operating while Mr Parker was working. The ships did have ventilation systems installed at some stage in some areas of the ship. I have only general information about that. However, the evidence establishes that no extractor fans or ventilation system was generally operating while workers used or cleaned up asbestos.
[789]I accept Mr Parker’s evidence that he was not warned by the defendant of the dangers of working with asbestos. Further I find that the plaintiff was not warned by the defendant of the dangers of working in the areas where there was the risk of exposure to asbestos. He was not provided with the option of working with a mask or a respirator. I accept his evidence that he would have worn a mask if it had been provided.
[790]From all of the oral evidence called (including affidavit evidence) by the plaintiff, I find that the defendant provided no ventilation whilst the ships were at the fit-out wharf, and did not take adequate steps to suppress the amount of dust and fibre that was being generated by the trades.
[791]I agree with the submission of Mr Little QC that there is no evidence or no reliable evidence that the defendant took any steps to protect its workers, including the plaintiff, from the effects of cumulative asbestos exposure while he was working on the ship at the fit out wharf.
[792]Without steps to minimise the exposure the probability of harm was significantly increased. The potential problems that could arise from exposure included serious and debilitating lung disease as well as an increase in the likelihood of contracting a life threatening illness.
[793]The magnitude of the risk has to be looked at in the context of the difficulty in minimising it. It would not have been an expensive or difficult task to put in place those matters mentioned above. Indeed, to a large extent, they were the recommendations of Dr Wilson.

The Judge came to the following conclusion:
[795] I find that the defendant breached its duty of care in that it:
(a)     Did not warn workers exposed to asbestos dust and fibre of the dangers of asbestos dust and fibre.
(b)     Did not provide masks or respirators to workers exposed to asbestos dust and fibre.
(c)     Did not require workers exposed to asbestos dust and fibre to wear a mask or respirator.
(d)     Did not reduce the amount of airborne dust on board ships at the fit-out wharf by using extractor fans or wetting down dust or ensuring that dust was cleaned up regularly by use of industrial vacuum cleaners.
(e)     Did not instruct workers on how to avoid exposure to asbestos dust and fibre.
Although not referred to here, the Judge treated the finding at [779] as a further instance of BHP’s breach of duty.
Accordingly BHP was liable in negligence: reasons at [796].
The Judge found that the exposure to asbestos dust and fibres caused the asbestos related conditions from which Mr Parker was suffering. He found that the presumption of causative effect created by s 8(2) of the Dust Diseases Act 2005 (SA) (the DDA) arose and that BHP had not established “… proof to the contrary”. He said:
[857]I note that as I have found that the defendant took no steps to measure the levels of airborne dust, its own breaches of duty prevent it from discharging the evidentiary onus of establishing that its breaches had no effect, or that injury would have occurred even if the duty had been discharged.
Had it been necessary to decide the question of causation applying common law principles, the Judge would have found that the exposure caused the asbestos related conditions: reasons at [856].
The Judge ordered BHP to pay damages as assessed by the Judge.
BHP denies that it is liable to Mr Parker, and challenges the Judge’s conclusions. BHP also challenges the award of damages as being excessive.
Summary of the relevant principles of law
As we understood the argument, there is no significant dispute about the relevant principles of law. The dispute now is over findings and conclusions of fact.
In Roads and Traffic Authority of New South Wales v Dederer,[1] Gummow J conveniently summarised the principles that are relevant to this case. He said:
[18]… These principles may be restated shortly. 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 (1980) 146 CLR 40 at 47-48.[2]
In Czatyrko v Edith Cowen University,[3] in a joint judgment, the Court stated the following “basic general principles”:
… 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.[4]
Citations omitted
[1] [2007] HCA 42; (2007) 234 CLR 330.
[2] Ibid at [18], 337-338.
[3] [2005] HCA 14; (2005) 79 ALJR 839.
[4] Ibid at [12], 842-843.
BHP owed to Mr Parker a duty to take reasonable care to establish and to maintain a safe system of work and a safe place of work. In the case of a well recognised relationship such as that between employer and employee, it is sufficient to formulate the duty in those general terms. Our understanding is that comments to that effect by French CJ and Gummow J in their dissenting reasons in Kuhl v Zurich Financial Services Australia Ltd[5] represent the law of Australia.
[5] [2011] HCA 11 at [21]-[22]; (2011) 85 ALJR 533 at 540.
In most cases it will be necessary to identify the particular risk which it is said the employer, in the exercise of reasonable care, should have taken steps to minimise or avoid. It is necessary to identify the risk so that one can assess what a reasonable response to that risk would be: Dederer at [59] Gummow J.
The risk in this case was that a worker, performing work of the kind performed by Mr Parker, 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. 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 control of the system of work. This was a matter which was the responsibility of BHP. BHP was in a position to impose controls on the manner in which products containing asbestos were used. The incidence and magnitude of the second aspect of the risk was a matter of medical science, but was linked to the first aspect as one could say that the longer the period of exposure, and the greater the intensity of the exposure, (that is, the quantity of dust and fibres) the greater was the risk of a worker contracting an asbestos related disease.
It being accepted by BHP that it owed a duty of care to Mr Parker, and (as we understand it) it being common ground that the risk was the risk that we have identified, the Judge had to decide whether BHP had been in breach of its duty of care in relation to that risk. That question is to be approached in the manner indicated by Mason J in The Council of the Shire of Wyong v Shirt,[6] as the Judge recognised:
A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone[1951] AC 850, 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.[7]
This statement of the law remains authoritative: State of New South Wales v Fahy.[8]
[6] [1980] HCA 12; (1980) 146 CLR 40.
[7] Ibid at 47-48.
[8] [2007] HCA 20 at [56]; (2007) 232 CLR 486 at 505.
This approach has been referred to as the “Shirt calculus”. As Gummow and Hayne JJ said in Fahy:
… The description may be convenient but it may mislead. 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.[9]
[9] Ibid at [57], 505.
Citation omitted
The last sentence of that passage is significant. Their Honours went on to say:
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".[10]
Citations omitted
On this point we refer also to the reasons of Gummow J in Dederer at [65] and to the reasons of Hayne J in Vairy v Wyong Shire Council.[11]
[10] Ibid at [58], 505-506.
[11] [2005] HCA 62 at [126]-[128]; (2005) 223 CLR 422 at 461-462.
If a breach of the duty of care is established, the plaintiff must establish that the breach caused the relevant injury.
Summary of conclusions
We agree with the following principal findings made by the Judge:
[757]By 1971/72, indeed for many years preceding this time, it was recognised that insulating workers were substantially at risk. It was also publicised that persons, other than those working directly with asbestos, were contracting asbestosis. It was well reported in the literature that the conditions of asbestosis, carcinoma of the lung associated with asbestosis or asbestos exposure and mesothelioma all took a long time to cause symptoms and had “insidious onset”.
[758]The tendered documents establish that from as early as the Merewether report dust minimisation was seen as an important strategy to adopt by employers. It became apparent over the years that the strategy was of assistance in reducing the risk but not removing it. Whilst they were recommendations in the 1930s in relation to the textile industry, by 1950 the need for such precautions in relation to other industries had became apparent. By the 1960s it was apparent that industries, which required insulation work performed with asbestos, needed to understand the dangers associated with asbestos and take appropriate action.
[759]The defendant submitted, very forcefully, that the material tendered did not prove a scientific consensus on the question of exposure to asbestos. As it was put in submissions, what I should be looking for was “consensus” as there is “a distinction between opinions of individual people and a consensus”. I accept that as a proposition. However, the fact that someone may disagree with a particular article does not mean that view has to be given equal weight. The fact that there may be two views does not necessarily mean the views are of equal validity.
[760]It is a matter of looking at the issues in the context of the material as it evolved. The defendant did not suggest otherwise.
[761]I accept that there were, by the late 1960s, debates in the literature on certain topics to do with asbestos. There were articles calling for more scientific work to be undertaken in order to clarify various issues. That is to be expected in a scientific matter. What was not being debated, however, was the fact that exposure to asbestos caused asbestosis and an increase in the risk of lung cancer; these issues were not seriously in dispute. Mesothelioma was clearly established as being related to asbestos exposure but the identification of “blue” asbestos as the culprit had not been established by the late 1960s although it was clearly suspected of being the cause.
…..
[765]I find that it was not in dispute in the literature after the 1930s that employers needed to be aware of the dangers of working with asbestos and that precautions should be taken to reduce the risk. Dust minimisation and suppression is constantly referred to as appropriate measures an employer should take. The literature did not seek to confine such matters to textile factories. As knowledge increased it became clear that any employer dealing with asbestos needed to be careful and reduce employees’ exposure to asbestos. By the 1960s there were articles dealing with the dangers of asbestos in shipyards. Workers in shipyards were identified as employees at risk. That included workers who were not actually working with the asbestos products but employees who worked in the vicinity of where asbestos products were being used.
[766]Even as late as 1976 the cumulative dose necessary to cause malignancy (ie lung cancer or mesothelioma) was unknown.
….
[769]I find that as at 1971/72 that the defendant ought to have known or ought reasonably have foreseen that:
1     The use by it of asbestos products as part of its shipbuilding activities at Whyalla would release into the atmosphere respirable asbestos fibres/dust in the vicinity of their employees who were working on the ship while it was at the fit out wharf.
2     Workers such as the plaintiff would, in the course of their work, be exposed to a level of respirable asbestos fibres/dust.
3     By 1971/72 it was established scientifically that exposure to respirable asbestos fibre could give rise to the risk of a life threatening disease or a serious debilitating disease. This risk was certainly not far fetched or fanciful.
4     Such scientific material was readily available and generally in the public domain.
Citations omitted
We agree in substance with the findings of fact by the Judge, summarised above, although some findings call for some qualification.
The following matters are relevant to foreseeability of a risk of harm, and are supported by the Judge’s findings, or are findings that can readily be made on the evidence.
BHP knew in 1971 and 1972 that workers in the position of Mr Parker were exposed to asbestos dust and fibres. BHP knew that exposure to asbestos dust and fibres could cause asbestos related disease.
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.
Mr Parker’s exposure to asbestos dust and fibres was not so brief or fleeting that one could discount a risk of injury.
Dr Wilson’s report in 1968 relating to work on the fitting out of ships at Whyalla, drew BHP’s attention to the presence of asbestos dust and fibres in the workplace, and to the need to take steps to avoid or mitigate the risk of harm from that exposure.
The Judge was right to find that there was a foreseeable risk of harm to workers such as Mr Parker from exposure to asbestos dust and fibres in the fitting out of ships.
In the alternative, by s 8(2) of the DDA, BHP is presumed to have known in 1971 and 1972 that exposure to asbestos dust could result in a dust disease. BHP carried on “a prescribed industrial or commercial process”: see the Dust Diseases Regulations 2009 (SA), Schedule 1, item 6(a), item 7(a) and item 8(a). That process could have resulted in the exposure of Mr Parker to asbestos dust. BHP is presumed to have known in 1971 and 1972 that Mr Parker’s exposure to asbestos dust could result in dust disease.
We turn to the question of what BHP should reasonably have done by way of response to the risk. As the Judge said at [781], the magnitude of the risk was unknown. No samples were taken by BHP. But BHP was aware of the presence of asbestos dust and fibres, and aware of the risk of harm to workers as a result of that. The risk in question was that a worker would suffer a serious and possibly fatal disease. BHP could have carried out sampling, or could have arranged for sampling to be carried out, with a view to measuring the quantity of dust and fibre present in the air.
The information about asbestos and asbestos related disease, summarised by the Judge at [769] (above), was available to BHP by 1970. BHP employed many workers at Whyalla and elsewhere in Australia. It had a substantial shipbuilding trade which involved the use of products containing asbestos. As will appear in due course, the question of the exposure of workers involved in shipbuilding at Whyalla had been raised with BHP before 1971, and BHP was aware of the risk of harm to workmen like Mr Parker.
BHP was aware of the presence of asbestos dust and fibres in the workplace, and aware of the risk of harm to workers as a result of that. The risk in question was that a worker would suffer a serious and possibly fatal disease.
In the circumstances, in response to that risk, at the least, BHP should have carried out sampling, or should have arranged for it to be carried out: reasons at [779].
The report of Dr Wilson did not justify the failure to do this. The report identifies the fact of potentially harmful exposure to dust and fibres. Dr Wilson’s recommendations related to workers who were involved in the application of asbestos, and to workers who were involved in spraying asbestos and using it for lagging, and in covering asbestos coated piping. BHP knew or should have known that these recommendations were based on an incomplete assessment of the work situation. Dr Wilson did not observe all of the relevant processes in the workplace, nor did he observe their possible combined effect. We refer to spraying, lagging and sweeping up. Nor did Dr Wilson direct his attention to workers like Mr Parker. In the circumstances, a reasonable person in the position of BHP would not have relied on the report of Dr Wilson, and such measures as BHP had taken to implement it, as a reason for not carrying out tests to determine the level of dust and fibre at the work place. In the alternative, a reasonable person in the position of BHP would have responded to the risk of injury by taking precautions to protect workers in the position of Mr Parker. The provision of masks or respirators to such workers was one measure that could have been taken: reasons at [795].

Measures relating to other tradesmen that were recommended by Dr Wilson were not taken. If taken in areas where Mr Parker worked, they might have amounted to a reasonable response to the risk. In particular, the use of extractor fans, the wetting down of dust, and ensuring that dust was regularly cleaned up using industrial vacuum cleaners: reasons at [795].
Having regard to the evidence of Mr Ewbank, which the Judge accepted and it was open to him to accept, the Judge found that the recommendations by Dr Wilson were not in fact implemented, at least generally, in relation to workers using asbestos products in the course of fitting out ships at the relevant time. The implementation of these measures might have been effective to reduce the exposure of workers such as Mr Parker, who were working near tradesmen in relation to whom Dr Wilson made his recommendations.
In short, a reasonable person in the position of BHP, having regard to the foreseeable risk of injury to workers such as Mr Parker, would have either implemented testing or sampling to determine the quantity of dust and fibre in the atmosphere, and then taken appropriate measures in the light of the findings, or would have implemented measures of the kind recommended by Dr Wilson to reduce the incidence of dust and the fibres in the air, but would also have taken steps to protect workers such as Mr Parker. BHP did not undertake sampling or testing, nor were the measures recommended by Dr Wilson consistently implemented.
Nor did BHP take any measures directed at workers in the position of Mr Parker. In particular, masks and respirators were not provided.
In all the circumstances, the Judge was right to find that the defendant failed to take measures that a reasonable person in the position of BHP would have taken by way of response to the foreseeable risk.
The potential consequence of a failure to take reasonable measures was serious, and raised the risk of serious harm to a large number of workers. While the cost of taking preventive measures was not established, there was no evidence to suggest that it was unreasonable to expect BHP to incur that cost.
This conclusion does not depend upon the Judge’s finding that BHP took no steps to protect its workers: reasons at [791]. BHP took steps to implement, or have implemented, the recommendations made by Dr Wilson. But, as the Judge found, and it was open to him to find, relying on the evidence of Mr Ewbank, those recommendations were not uniformly implemented. The evidence of Mr Ewbank indicates a substantial failure to implement them.
Finally, we agree with the Judge’s finding that, by operation of s 8(1) of the DDA, it not being proved to the contrary, it was to be presumed that the exposure of Mr Parker to the asbestos dust and fibres caused or contributed to his asbestos related diseases: reasons at [853].
The Judge’s conclusions that BHP breached its duty of care (in particular at [779] and at [795]) are not expressed in terms of a prospective assessment of the reasonable response by BHP to the foreseeable risk of harm. But they reflect such an assessment, and in any event the responses were appropriate responses to that risk.
We now turn to the main challenges to the Judge’s findings of fact on issues relevant to a consideration of whether BHP failed to discharge the duty of care that it owed to Mr Parker.
Disputed Findings
Period of exposure to dust
Mr Parker migrated from England to Australia in 1964. He obtained employment with BHP at its Whyalla shipyard. He worked mainly on ships on the slipway, and occasionally on ships at the “fit out” wharf. Mr Parker returned to the United Kingdom in 1966. He worked at a shipyard there, performing the same kind of work as he had performed for BHP. He returned to Australia in 1970, and resumed his employment with BHP at Whyalla. Some time in 1971 Mr Parker suffered an elbow injury at work. He required an operation, and as a result he was unable to work between late January 1972 and late February 1972. Mr Parker gave evidence that he was on light duties before and after this period. The Judge accepted his evidence and found that he was on light duties for close to 12 months in all: reasons at [40]. While on light duties Mr Parker worked at the “fit out” wharf: reasons at [41]. Some time in 1972 he returned to his normal work. This case is concerned with the period when he was restricted to light duties, and was working at the “fit out” wharf.
Two issues arose in relation to this. First, the period of time during which Mr Parker worked at the “fit out” wharf, and for how much of that time he was in fact working on the fitting out of ships. The second issue was the amount of dust to which he was exposed in the workplace. We will deal with this under the next heading.
Counsel for BHP submitted that in cross-examination Mr Parker had said that the period he spent on light duties might only have been “several months” (T236), and not the period of 12 months that he had given earlier in his evidence (T202). The answer in cross-examination appears to relate only to the period after the operation, that is, after February 1972. Counsel submitted that the Judge had no basis for making the finding that he did (see above). We disagree. It was open to the Judge to find that there was a period both before and after the operation when Mr Parker was on light duties, and that this amounted to close to 12 months. There is no reason to reverse that finding. Counsel for BHP also referred to a record of ships fitted out at Whyalla in 1971 and 1972. This record showed how long each ship spent at the fit out wharf. It demonstrates that while ships were fitted out in the six months or so either side of the period when Mr Parker was unable to work, there were times when no ship was being fitted out. The Judge did not refer specifically to this point, but his reasons at [39] clearly refer to it. The Judge did not overlook it.
Perhaps the Judge’s finding should have been that the period of exposure to asbestos (allowing for the last point) was no more than about six months. But that does not affect the finding of exposure, nor could exposure for that period of time be treated as insignificant. The criticism of the Judge’s finding leads nowhere, and the most that can be said is that the period of exposure to asbestos was probably a month or two less than the Judge allowed.
Working conditions
Mr Parker gave evidence about his work at the fit out wharf, about the use of asbestos by other tradesmen, about his own contact with asbestos (for example, when sweeping surfaces before working on them) and about the presence of dust in the workplace. The effect of his evidence was that other tradesmen were often working with asbestos near where he was working, and that there was, on occasions, a lot of dust in the air: see, for example, the Judge’s reasons at [45]. His evidence was also to the effect that he was not warned about exposure to asbestos, was not provided with any protective mask or apparatus, and that the other tradesmen were not taking measures to limit the amount of dust: see, for example, reasons at [49]. The Judge accepted this evidence. He said:
[69]I accept the evidence of the plaintiff as to his working conditions at the time of his light duties. The defendant did not seriously dispute he had some exposure to asbestos at the relevant time: it disputed the extent of the exposure.
It was open to the Judge to accept this evidence, and no basis for disturbing that finding has been made out. We are prepared to accept the submission to the effect that Mr Parker’s evidence might overstate the amount of dust present, because it implies that incidents that he described were regular occurrences, whereas they might not have been. It is one thing to say that the atmosphere was dusty, another thing to identify whether that dust contained asbestos dust and fibres, and if so, how much. But even if those qualifications are made, there is a finding that we would not disturb to the effect that asbestos products were being used, there was dust in the air that contained asbestos dust and fibres, and that precautionary measures to protect against this dust were not being taken.
Mr Ewbank, who worked at Whyalla as a lagger, also gave evidence about working conditions. He worked for a contractor. He worked at the Whyalla shipyards from 1965 to 1970: reasons at [76]. He gave fairly detailed evidence about the use of asbestos products in the fit out process, including the spraying of asbestos and lagging with asbestos. His was a trade that involved the application of asbestos and asbestos products. His evidence was to the effect that laggers “tried to minimise the dust but they couldn’t always do it”: reasons at [90] and at [107]. He said his work created dust, and it was a dusty job: reasons at [90]. He never wore a mask while at work: [90]. He was not told to by employees of BHP or by his employer to wear a mask: [90]. A vacuum cleaner was not used to remove asbestos fragments and dust: reasons at [94].
BHP argued that Mr Ewbank was not reliable, because one could not expect him to recall reliably details about this period of his working life, more than 30 years later, and bearing in mind the different places at which he had worked. It argued that Mr Ewbank displayed a dogmatic attitude. He had been cross-examined about a memo of 6 December 1968 from a Government Inspector which contained information to the effect that the lagging work on a ship on which he had worked had been completed by eight men, working 48 hours a week each, in a period of seven weeks: reasons at [101]. This was all part of a submission directed to an argument that asbestos products were in use for only a relatively short part of the fitting out process. Mr Ewbank categorically rejected the statement in the memorandum, saying that it was impossible for the work to have been done in that period of time: reasons at [101].
BHP submitted that this dogmatic attitude in the face of the written memorandum demonstrated that Mr Ewbank was unreliable. We disagree. It was not possible, at trial, to verify the source of the material in the written memorandum. One cannot proceed on the basis that it must be correct, and that accordingly Mr Ewbank must have been wrong. The Judge preferred the evidence of Mr Ewbank on this point, and it was open to him to do so: reasons at [105].
The Judge accepted Mr Ewbank’s evidence by and large. He described Mr Ewbank as “most impressive”: reasons at [16] and at [296]. The Judge was entitled to act on his evidence. Once again, we can find no basis to disturb his decision.
Counsel at trial for Mr Parker called evidence from several other men who had worked at the Whyalla shipyard at various times. They worked there at different times, and in various trades. The Judge also admitted affidavits from a number of deceased men who had worked at the Whyalla shipyard. They were from a number of different trades. They worked there at different times. Some had left before Mr Parker started. Some said that they had worked alongside Mr Parker.
The affidavits were tendered relying on s 34C and s 45B of the Evidence Act 1929 (SA). Each of those sections makes provision for the admissibility of documents in civil proceedings in circumstances in which they would not ordinarily be admissible, but for the provisions of the Evidence Act. Different conditions are attached in each case to the exercise of the power.
Counsel for BHP objected at trial to the admission of the affidavits, and challenges the decision to admit them, on the grounds that the affidavits were not relevant, and because the deponents described tasks of marginal relevance to the cases. In particular, many of them dealt with the spraying of asbestos. He also submitted that BHP was prejudiced because he could not cross-examine the deponents, the deponents being deceased. He also challenged the affidavits on the basis that they were lacking in precision. As well, the affidavits had been prepared for use in litigation in which they were plaintiffs, claiming damages as a result of having contracted asbestos related diseases. The affidavits had been prepared by solicitors experienced in acting for plaintiffs in such litigation.
The Judge admitted the affidavits. He said:
[18]Affidavits of a number of witnesses were tendered. It was accepted that all of these witnesses were deceased. I have taken into account that their affidavits were prepared for the purpose of their claims relating to asbestos related illnesses. I accept that their evidence was not tested by cross-examination. However their evidence showed a consistency with the other affidavits and the other evidence called by the plaintiff that was compelling.
See also the Judge’s reasons at [251]-[252].
As we have said, the decision to admit the affidavits is challenged on appeal. There is a difficulty with Judge’s apparent reliance on s 34C. Subsection (3) provides:
34C(3)Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.
Counsel for the plaintiff submits that this point was not taken at trial. But the grounds of objection outlined above raise the application of s 34C(3), to the extent that the grounds rely on an argument that each deponent had an interest in pending proceedings involving a dispute as to facts which the respective affidavits might tend to establish. However, s 45B provides a basis for the admission of the affidavits, and in the circumstances that provision applies to the present case.
That provision gave the Judge power to admit the statements subject to the Judge considering various matters referred to in the section. It is clear that the Judge considered those matters. No error in the exercise of the power has been identified. That is not to say that the question of whether the affidavits should be admitted was an open and shut one. There were arguments either way. But we cannot identify any basis for saying that the Judge was wrong in reaching the conclusion that he did.
A submission pressed at trial was that Dr Wilson’s report contradicted the evidence of the deponents, and should be preferred. This seems to have been a basis for an argument that the affidavits should not be admitted because they lacked any probative force. We do not agree with this submission. To the extent that the evidence of the deponents suggested that precautions recommended by Dr Wilson were not taken, that evidence is not contradicted by his report. His report does not deal with the implementation of his recommendations. It is clear from his report that the measures recommended by him were not in force when he went to Whyalla. And, as it turned out, the Judge found that those recommendations were not implemented later.
The evidence from the other workmen, and the affidavits from the deceased workers, were necessarily general. They related to different periods and different trades. But they supported the Judge’s finding that workers like Mr Parker were exposed to asbestos dust and fibres, and that available protective measures were not being taken. BHP’s written submissions pointed to a number of matters of detail by which counsel submitted the Judge should have been influenced. In some respects their evidence supported contentions advanced by counsel for BHP. The Judge summarised the criticisms of the evidence from the workers and deceased workers as follows:
[291]First, the events were over 35 years ago at a time when they had no appreciation that asbestos was dangerous and therefore no reason to remember what they were exposed to.
[292]Secondly, many of the witnesses had worked at different shipyards making an assessment of their reliability in relation to the Whyalla Shipyard almost impossible.
[293]Thirdly, many of the witnesses had their own claims against the defendant and therefore there would be a tendency, even if it was an unconscious one, to exaggerate the exposure to asbestos.
The Judge accepted the evidence of the workers who were called as witnesses, by and large. He said:
[17]A number of other witnesses were called on behalf of the plaintiff. In general I accept their evidence. All were honest and did their best to assist the court. Given that they were giving evidence of events that occurred over 40 years ago their evidence was of a general nature only.
He repeated that finding at [155]. He added:
[155]… I accept the plaintiff’s evidence that he was not warned of the dangers of asbestos. I find that the lagging work was conducted as described. It was work that created a lot of dust both when performing the work and when the area was cleaned up. No attempt was made to “wet’ the asbestos at any stage. The “compo” (slurry) was mixed either on the wharf or where the laggers were working. No masks were provided nor was there any mechanical ventilation inside the hull of the ship at least for most of the time the lagging was being undertaken. The only cleaning up was by use of a broom and not by industrial vacuum cleaner.
[156]The method of operation did not change over the years.
[157]As to the system of “cleaning up” the evidence is not clear. There was a system in place that sweeping was done by someone from the painters and dockers but it appears that some workmen were to clean up as well.
[158]I find the “cleaning up” contributed to the dusty environment.
As to the affidavit evidence the Judge said:
[251]I have taken into account the defendant’s submissions. I accept that the affidavits were all made by claimants. They were prepared by solicitors experienced in “asbestos” litigation. They have not been subjected to having their recollections tested in the “usual” way by cross-examination.
[252]However they were sworn affidavits. The detail is consistent with other evidence in the case. Making allowances for the above matters, I find that the evidence is supportive of the case for the plaintiff. They fortify my views of the plaintiff’s evidence and the other lay witnesses he called.
On the basis of the evidence of these witnesses, and on the basis of his findings in relation to the affidavit evidence, the Judge then made the findings set out in our reasons at [5] and [6].
These are strong findings, made on a substantial body of evidence. That is not to say that there is no force at all in the criticisms by counsel for BHP. But, in the end, his criticisms go to matters of detail. As best we can tell, all of his criticisms were put to the trial Judge, were considered by the trial Judge, and were not accepted.
We cannot identify any basis for departing from the Judge’s findings of fact. Perhaps Mr Parker’s exposure was not for as long as the Judge thought. Perhaps the atmosphere at the workplace was not as dusty as the Judge found. Perhaps there were greater efforts by different tradesmen to limit the amount of dust in the atmosphere, and to clean up sources of dust. But even if those qualifications are made, one is left with firm findings by the Judge that, for a not insignificant period of time, Mr Parker was exposed to asbestos dust and fibres as a result of work carried out in the fitting out of ships, work which involved the application and cutting in various ways of products containing asbestos. One is also left with the Judge’s findings that Mr Parker was not provided with a mask or respirator, was not warned about the dangers to which he was exposed, and was not protected by mechanical ventilation nor by the regular use of vacuum cleaners rather than brooms for cleaning up.
Journals and Articles
Counsel for Mr Parker tendered a large bundle of scientific and medical articles and papers relating to the dangers to health attributable to exposure to asbestos in the work place. He asked the Judge to read them and from them to make a finding about “the state of knowledge in the scientific, medical and industrial areas at particular points in time”: reasons at [332]. This was on the basis that the material was mainly “in the public domain”. The Judge did this. The Judge’s decision was not challenged on appeal, although BHP made some criticisms of the Judge’s assessment of some of the material, and denied the utility of some of the material. It is not necessary to decide whether the Judge should have admitted the material, at least for the purpose proposed. As the Judge noted at [333], reading this material was a large task. The Judge did what he was asked because the case was conducted in part by reference to this material: reasons at [334]. The articles and papers were written by experts, on a matter to which their expertise was relevant. The Judge had no expert evidence to assist him on the question of how the material was to be used, and what it established. It is arguable that expert material of this kind should be used by a trial Judge only if the Judge has the assistance of appropriate expert evidence about how the material is used and what it discloses about the state of expert knowledge at a particular time or particular times.

Be that as it may, in this case the point can be left there. It was not argued before this Court. The Judge made findings about the state of expert knowledge at certain times, and about what information was in the public domain, based on the material. We do not understand BHP to challenge those findings in substance. In any event, having regard to the material before the Judge, the findings are sound. The Judge said:
[765]I find that it was not in dispute in the literature after the 1930s that employers needed to be aware of the dangers of working with asbestos and that precautions should be taken to reduce the risk. Dust minimisation and suppression is constantly referred to as appropriate measures an employer should take. The literature did not seek to confine such matters to textile factories. As knowledge increased it became clear that any employer dealing with asbestos needed to be careful and reduce employees’ exposure to asbestos. By the 1960s there were articles dealing with the dangers of asbestos in shipyards. Workers in shipyards were identified as employees at risk. That included workers who were not actually working with the asbestos products but employees who worked in the vicinity of where asbestos products were being used.
[766]Even as late as 1976 the cumulative dose necessary to cause malignancy (ie lung cancer or mesothelioma) was unknown.
[767]It is also clear from the articles that there was, available from the 1930s, equipment that could be used to measure the amount of dust including asbestos that employees were exposed to in their work area.
The Judge then said in relation to the period when Mr Parker was carrying out night duties:
[769]I find that as at 1971/72 that the defendant ought to have known or ought reasonably have foreseen that:
1     The use by it of asbestos products as part of its shipbuilding activities at Whyalla would release into the atmosphere respirable asbestos fibres/dust in the vicinity of their employees who were working on the ship while it was at the fit out wharf.
2     Workers such as the plaintiff would, in the course of their work, be exposed to a level of respirable asbestos fibres/dust.
3     By 1971/72 it was established scientifically that exposure to respirable asbestos fibre could give rise to the risk of a life threatening disease or a serious debilitating disease. This risk was certainly not far fetched or fanciful.
4     Such scientific material was readily available and generally in the public domain.
Items 3 and 4 are apparently based on the journals and articles. The Judge was not unduly dogmatic on this topic. He said:
[761]I accept that there were, by the late 1960s, debates in the literature on certain topics to do with asbestos. There were articles calling for more scientific work to be undertaken in order to clarify various issues. That is to be expected in a scientific matter. What was not being debated, however, was the fact that exposure to asbestos caused asbestosis and an increase in the risk of lung cancer; these issues were not seriously in dispute. Mesothelioma was clearly established as being related to asbestos exposure but the identification of “blue” asbestos as the culprit had not been established by the late 1960s although it was clearly suspected of being the cause.
The Judge rightly rejected a submission by BHP that unless the material established a “scientific consensus” it was of no value: reasons at [759]. As the Judge said, disputes or differences of opinion were matters to be taken into account when deciding what weight should be given to the material. But the general conclusions that the Judge reached appear to us to be beyond challenge, having regard to the evidence before the Judge. Counsel for BHP made some valid points about particular papers or articles, but without going into details we are satisfied that they do not undermine the findings that the Judge made. He rightly pointed out that the material was not the product of a “literature search” collecting all available material on the topic, whether it helped or hindered the plaintiff’s case. The evidence before the Judge indicated that the material was assembled to demonstrate what was known about the dangers associated with asbestos products in the workplace. But no contrary material was tendered by BHP. It could have done so if it wished. The basis upon which the material was collected does not deprive the material of utility.
Mr Parker called Dr Becklake, the author of one of the articles in question, published in 1976. She was an epidemiologist, well qualified to give expert evidence on the state of medical knowledge about the dangers of inhaling asbestos dust and fibres, and about the knowledge that was available to informed employers at the relevant time: reasons at [525] and [529]. The Judge rightly admitted her evidence on that topic, and was entitled to accept the evidence as he did: reasons at [539] and [578]. The Judge said:
[579]Specifically on the evidence of Dr Becklake I make the following findings:
1     There was a suspected association of asbestosis with asbestos exposure from around 1900, that it was “probably” associated in around 1910 and that the association was established from about 1930.
2     There was a suspected association of lung cancer with asbestos exposure from around 1930, that it was probably “associated” around the early 1940s and that the association was established by the early 1950s.
3     There was a suspected association between mesothelioma and asbestos exposure in the late 1950s, that it was probably “associated” in the early 1960s and that the association was established in about 1964.
4     The question of a “dose relationship” with the asbestos exposure is not part of these findings.
Again, we consider that these findings are beyond challenge, bearing in mind item 4. Her evidence did not provide a basis for a finding as to the duration or level of exposure to asbestos dust and fibres that could be regarded as safe or that was likely to be harmful. Subject to that, BHP did not appear to make any challenge of substance to these findings.
BHP challenged the Judge’s decision to admit evidence from Mr Stewart, another witness called by Mr Parker. Mr Stewart was an “industrial hygienist”, and was called to give evidence on a number of topics, including methods of measuring dust in the environment, the use of respirators and ventilators and the properties of asbestos: reasons at [588]. The Judge’s summary of Mr Stewart’s evidence includes some matters on which Counsel challenged his expertise, or the basis for his opinion. In the end the only finding that the Judge made was this:
[629]I accept Mr Stewart’s evidence that the Department of Health in Victoria, for the time that he worked there in 1953 to 1966 was aware of the dangers of the exposure of workers to asbestos. I accept that the Department held views, consistent with the literature I have reviewed earlier, in relation to the questions of dust counting and the means available to suppress dust. I accept his evidence about those matters as well as to the availability of respirators/masks and the utility of each.
BHP is right in saying that the best evidence of the opinions of the Department referred to is to be found in opinions it expressed to the National Health and Medical Research Council (NHMRC). We will come to documents published by that body a little later. But nothing of significance turns on that point, and in our opinion the Judge was entitled to accept his evidence about the availability of respirators and masks. That was a matter within his expertise.
We turn to the evidence of Mr Rogers, called as a witness by BHP. He was an “occupational hygiene consultant”: reasons at [631]. The Judge accepted that he had relevant expertise: reasons at [666]. The Judge rejected an attempt by Mr Rogers, in evidence, to reconstruct a “time weighted average” for Mr Parker’s exposure to asbestos dust and fibres, some 39 years ago. The Judge rejected this aspect of his evidence on the basis that it rested on a number of assumptions about the duration and intensity of Mr Parker’s exposure to asbestos dust: reasons at [676]. The Judge found that those assumptions were not established by the evidence: reasons at [700]-[710].
However, the Judge accepted evidence from Mr Rogers, that evidence from workmen about the amount of, or visibility of, dust in the air, was not a reliable indicator as to the quantity of asbestos dust in the air: reasons at [711]-[712]. This finding is significant, because a number of the witnesses for Mr Parker described the workplace as very dusty.
The Judge explained carefully why he did not accept the evidence of Mr Rogers. As we have said already, the Judge considered that it rested upon too many unestablished assumptions. Mr Rogers had no measurements of dust counts in the Whyalla shipyard available to him, and to assist him in his reconstruction. Mr Rogers had not visited the workplace (understandably) and so had a limited understanding of the situation with which he was dealing. He accepted, as seems self evident, that the concentration of dust would vary from time to time and from place to place, and would be influenced by the particular process, and the work practices adopted. There were other technical difficulties with his assumptions and calculations.
Counsel for BHP seemed in argument to accept some of this. He complained that Mr Rogers’ methodology should not have been rejected, but made the point that it was not claimed that Mr Rogers’ conclusions provided more than a rough guide, and noted that at [703] the Judge had said that Mr Rogers’ method could not “… give anything other than a rough guide as to what someone like Mr Parker may have been exposed to on a time weighted average basis”. Counsel then submitted that the Judge should have found, on the basis of Mr Rogers’ evidence, that Mr Parker’s exposure was well below the NHMRC Standard at the time.
The Judge dealt with this whole topic in some detail and with considerable care. He pointed to a number of difficulties with particular assumptions or postulates on which Mr Rogers had relied. That was why the Judge was not prepared to make the finding which BHP argued on appeal he should have made: reasons at [703].
We agree with the substance of the submissions made by counsel for Mr Parker on this point, and with the Judge’s conclusions. We are not persuaded that the Judge erred. We agree with the Judge that if the methodology used by Mr Rogers involved significant assumptions which were not made out, or about which the Judge had real doubts, it was not appropriate to fall back to the proposition that there was leeway in Mr Rogers’ figures, that his conclusions could be treated as a rough guide, and that one could then conclude that the level of exposure was below that referred to in the NHMRC Standard.
We do not accept that the Judge erred in this respect.
The NHMRC Standard
At trial BHP tendered a number of documents published by or for the NHMRC. The NHMRC was for a number of years established by Order in Council but is now established by the National Health and Medical Research Council Act 1992 (Cth). At the relevant times, its functions included the following:
(a)to inquire into, advise and make recommendations to the Commonwealth and the States on matters of public health legislation and administration and on any other matters relating to health, medical and dental care and medical research;
….
The Judge noted the following aspect of the work of the NHMRC:
[717]A number of committees met and reported twice a year to the NHMRC. The relevant committee for the purposes of this case was the Occupational Health Committee (previously the Industrial Hygiene Committee). I agree with the defendant’s submissions that the Committee members generally appear to have been senior officials responsible from the areas within the Commonwealth and State Health Departments responsible for occupational health matters. The reports and minutes of the committee formed a large part of the tendered documents.
At trial considerable attention was paid to a Schedule published from time to time by the NHMRC. As to this, the Judge said:
[726]As mentioned the relevance of the NH&MRC documents in this case is that from time to time they published a schedule of “Recommended Maximum Concentrations of Atmospheric Contaminants for Industrial Exposures”. The earliest example in the tendered material is 1958. For asbestos dust the recommendation was “Five (5) million particles per cubic foot.” The schedule noted that, for asbestos, an “impinger” should be used for the collection of the sample.
The Schedule was reviewed by the NHMRC from time to time, and various versions of the Schedule were tendered before the Judge. The Schedule dealt with a number of atmospheric contaminants. For a number of years the recommended limit for asbestos was “five (5) million particles per cubic foot”: reasons at [729]. A further revised Schedule was adopted in 1969 and published in 1970. It was operative (as a guide) in 1971 and 1972.
The Schedule contained a re-written Introduction. The Introduction included the following statement:
The values in sections 1.1 and 1.2 of the booklet are those prescribed under the title ‘Threshold Limit Values’ by the American Conference of Government Industrial Hygienists; together with the values in section 2.1 they represent conditions under which it is believed that nearly all workers may be repeatedly exposed day after day without adverse effect. At the same time it is recognised that wide variations exist in individual susceptibility and that a small number of hypersensitive individuals may react at or even below the values listed.
The values specified for asbestos were “time-weighted average concentrations”, and a formula was given for calculating such concentrations. The introduction continued:
In practice, application of this formula should not be carried to absurd lengths (for example to an exposure of only one hour per day), and concentration peaks should not be neglected even though the time-weighted average is considered most appropriate. The amount by which a time-weighted average may be exceeded for short periods without injury to health depends upon a number of factors such as the nature of the contaminant, whether very high concentrations even for short periods produce acute poisoning, whether the effects are cumulative, the frequency with which high concentrations occur, and the duration of such periods. All must be taken into consideration in arriving at a decision as to whether a hazardous situation exists.
Whether designated as ceiling values or as time-weighted averages, the hygienic standards should be used as GUIDES in the control of health hazards, and NOT as very fine lines dividing ‘safe’ from ‘dangerous’ concentrations. The data on which the standards are based are seldom accurate enough to warrant dispute about slight deviations (± 20 per cent) from the values listed. It is in the spirit of these standards that wanton exposure to airborne chemicals be avoided: enlightened industrial hygiene practice maintains exposures well below the standard rather than at the standard.
In relation to asbestos, the document stated:
2 Chrysotile and amosite asbestos
The long-term, average fibre concentration of the air breathed by the worker should not significantly exceed four fibres per cubic centimetre of air, as measured by the membrane filter method of the British Occupational Hygiene Society or by any other method proven equivalent to this method.
In relation to short exposures, the Schedule stated:
The concentration values given in previous sections of this booklet refer specifically to repeated daily exposures to the compounds named and each exposure is considered to be of up to eight hours’ duration. Such conditions are not always relevant in industry, where men are often required by their work to undergo brief, isolated exposures to atmospheric contaminants, and under these circumstances invocation of the full-shift hygienic standard may lead to unnecessary delays in production and inflated costs in the institution of preventive measures.
Before the Judge the case was argued on the basis that the version of the Schedule referred to above was relevant as information available to an Australian employer taking reasonable precautions for the safety of workers, and in particular was available to and known to BHP. BHP argued at trial, and on appeal, that the Schedule proceeded on the basis that there was a safe level of exposure to asbestos, and that BHP was entitled to act on this basis. Indeed, standards and guides from other countries proceeded on the same basis. BHP further argued that the Judge should have found that Mr Parker’s exposure was below the level specified in the Schedule, although, as we have already indicated, the Judge was right to decline to make such a finding. On the other hand, counsel for Mr Parker emphasised that the Schedule was no more than a guide, and that “enlightened industrial hygiene” called for exposures to be kept “well below the Standard” and, generally, as low as was practicable.
We must say that the Schedule seems to us to make some of the matters canvassed at trial less significant than they otherwise might have been. The scientific literature is to be considered in light of an available, and apparently reputable, Australian standard to which an Australian employer like BHP could be expected to resort for guidance.
As the Judge noted in the version of the Schedule just referred to, the unit of measurement had changed to fibre concentrations: reasons at [738]. The Judge’s conclusions in relation to the NHMRC Standard were as follows:
[741]Whilst the guidelines provide evidence of the various recommendations made over the years, in the absence of evidence as to what the fibre count actually was at the defendant’s shipyards they do not assist the case to any extent.
[742]Even if I had accepted the evidence of Mr Rogers as to the fibre count that would not of course conclude the matter. The “standard” was simply a guide and not determinative of the issue of whether, in the circumstances, the plaintiff has proved that the defendant breached its duty of care.
…
[745]The standards were published with significant caveats. They could only have been one factor to look at in the overall evidence of the case and certainly not determinative. As mentioned there is no acceptable evidence as to the actual fibre count in the workplace. Whether the defendant complied with or breached the standard is unknown.
The Judge did not accept a submission by BHP that the opinion of its Occupational Health Committee represented “the Australian scientific consensus”: reasons at [722]. Counsel renewed this submission on appeal. We agree with the Judge. There is no evidence that it was set up to identify and establish a scientific consensus. There was no significant evidence about the state of qualified scientific opinion in Australia on the topic of risks to health from exposure to asbestos in the workplace. The significance of the NHMRC Standard is that it was the kind of document which one would expect an employer, or at least a large employer like BHP, to be aware of and to have regard.
We agree with the submission by counsel for BHP that the NHMRC Standard reflected an opinion that a level of exposure to asbestos could be identified, below which exposure to asbestos in the workplace could be considered relatively safe. But the scientific literature before the Judge disclosed a developing awareness of the dangers to health from using asbestos in the workplace. That was something to be borne in mind by an employer. As the Judge remarked at [724], there was no suggestion that the Standard represented “… a safe level below which no disease would occur”. As well, the Standard emphasised (by implication) the importance of measuring the quantity of asbestos fibres in the workplace atmosphere, and was explicit about the need to treat the Standard as a guide, and about the desirability of keeping atmospheric contaminants in the atmosphere as low as possible. The Judge made one or two minor criticisms of the NHMRC, in particular that it “moved slowly”: reasons at [722]. We agree that BHP could not be expected to make this kind of critical assessment of the work of the NHMRC. 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: reasons at [737]. We agree with the comment made by the Judge at [745], set out above.
Doctor Wilson’s report

The Judge also discussed other contributing medical conditions and observed:[82]
As discussed the plaintiff has a number of other disabling medical conditions. I do not intend to go through the evidence as I have already made findings about his medical condition. Clearly his emphysema is the “major” contributor to his breathlessness. His conditions, while having some impact on his overall functioning are not as important as his emphysema and asbestos related conditions.
However Professor Ruffin considered that his asbestos related conditions left him with a 20 per cent disability and that this may increase over time.
It is not possible to be precise with an issue such as this. Taking all matters into account I find that the compensable disabilities account for 1/3 of his current problems.
Total after apportionment $103,685 to which must be added the sum of $609.85. Thus the total amount of compensatory damages before allowance for “divisibility” is $104,294.85.
The Judge additionally awarded Mr Parker $20,000.00 by way of exemplary damages, leading to a total award of $72,124.93.
[82] Parker v BHP Billiton Ltd [2011] SADC 104, [933]-[936].
Damages – The Appeal
The appeal against the assessment of damages arises in an unusual circumstance. The parties invited the Judge to approach the assessment of damages using a methodology that differed from the established common law methodology. On the hearing of the appeal, it became apparent that the so-called agreement between the parties as to methodology had not been fully agreed and that the Judge, when assessing damages, adopted the methodology advanced by Mr Parker.
The Judge concluded that Mr Parker had established that he suffered from chronic benign pleural asbestos disease, mild asbestosis, chronic obstructive pulmonary disease, bronchiectasis and general medical problems.
The Judge set out what he understood to be the agreed basis of approach to the assessment of damages. It is understandable that the parties and the Judge would have looked for a pragmatic approach to the assessment of damages in the present proceeding. Had there been clear agreement as to the process to be followed, it would be unlikely that either party would be able to resile from what had been agreed. The difficulty in the present case is that it appears that there was no complete agreement and the Judge, notwithstanding the submission of BHP, acted on the basis that the Mr Parker’s methodology was agreed. This was not the case.
The Judge addressed the course to be followed when assessing damages which he described as follows:[83]
The plaintiff submitted that the proper course to follow when assessing damages is to:
(a) Determine the value of damages for the level of disability suffered by the plaintiff.
(b)Determine the amount of disability attributable to the asbestos disease (as opposed to other potentially contributing factors) and reduce the value of damages by the corresponding amount. (Some medical expenses could not be subject to such a reduction).
(c)Determine, as a fraction, what portion of the plaintiff’s exposure the defendant was responsible for.
(d)Determine the defendant’s liability by multiplying the fraction by the value of the damages.
The defendant did not oppose the general methodology described.
[83] Parker v BHP Billiton Ltd [2011] SADC 104, [860]-[861].
In written submissions put before the Judge at trial, BHP had proposed an alternative methodology as follows:
From Mr Parker’s overall disability, and therefrom each head of damage, whether special or general, must be excluded the following:
(a)that part relating to non-respiratory dysfunction (osteoarthritis and other co-morbidities leaving only the respiratory dysfunction);
(b)that part of the respiratory disability relating to emphysema having only asbestos related dysfunction if any;
(c)that part of the asbestos respiratory dysfunction attributable to the UK or other exposures leaving only the relevant Whyalla component.
The two methodologies are generally similar. However, there is one important difference to be noted for the purpose of this appeal. The BHP methodology required the Judge to separately address the non-compensable non-respiratory disabilities from the non-compensable respiratory disabilities. Mr Parker’s methodology blurred this distinction.
It was apparent that Mr Parker, as a consequence in part of long term tobacco use, was suffering from emphysema and asthma. In or about the year 2001, Mr Parker developed asbestos related conditions and according to the evidence accepted by the Judge, suffered some disability as a result. In addition, Mr Parker was suffering from non-compensable non-respiratory disabilities, as well as non-compensable respiratory disabilities. These circumstances, on BHP’s suggested methodology, required separate reductions to be made on account of non-compensable non-respiratory disabilities and non-compensable respiratory disabilities to allow calculation to be made of the proportion of Mr Parker’s pain and suffering and general disabilities that was referable to his compensable respiratory disabilities.
As will be discussed later, Mr Parker’s non-compensable non-respiratory disabilities are significant. The Judge did not make findings as to each of these disabilities or discuss their impact on Mr Parker’s general lifestyle.
The Judge mistakenly understood that the parties had agreed to Mr Parker’s methodology. To my mind, the consequence of the Judge’s approach led him to make inadequate findings of fact about the non-compensable non-respiratory disabilities and led him to misapply an opinion of Professor Ruffin, the Judge’s preferred medical expert. The above matters have led me to the conclusion that the Judge’s approach to the damages was flawed and also led to a gross overestimate of the compensable losses suffered by Mr Parker.
The Judge’s approach to the assessment was fundamentally flawed in another respect. The Judge, having found that BHP was in breach of its duty of care and that that breach was a contributing cause of Mr Parker’s developing asbestos related conditions, should have assessed damages in respect of the disease and its consequences to Mr Parker. As BHP’s breach of duty was a contributing cause, Mr Parker was entitled to recover against BHP his entire loss and damage. As there was another contributing cause – the conduct of Vickers Armstrong – in the ordinary course it would be left for BHP to seek contribution from that tortfeasor. However, as discussed above, Mr Parker had earlier recovered $29,000.00 in respect of his claim against Vickers Armstrong. In this circumstance, the proper course to be followed was for any judgment in favour of Mr Parker to be reduced by the amount he had recovered from Vickers Armstrong so as to avoid double compensation. At common law, there was no need for Mr Parker to be concerned with the apportionment of responsibility between BHP and Vickers Armstrong.
The Judge found that Mr Parker suffered from a dust disease and further, that he had established that his asbestosis and asbestos related plural disease were caused by cumulative exposure to asbestos. The Judge noted that it had been generally agreed that it was to be recognised that the disease suffered by Mr Parker was divisible in that a portion could be attributed to his exposure to asbestos while working for Vickers Armstrong in the United Kingdom and that a portion could be attributed to his exposure for some months in 1971 and 1972 at Whyalla. The Judge then reasoned:[84]
The plaintiff was exposed to asbestos while working in England. The plaintiff thought that he was exposed to asbestos more at Whyalla than in England. The information contained within Exhibit D2 would suggest that there may have been more exposure in England than he remembered.
The defendant submitted that on a “time worked” basis a 50 per cent reduction was appropriate. While time worked is not the only factor, in all of the circumstances I am of the view that such an apportionment is the appropriate one. In the circumstances I deduct 50 per cent from his damages for the contribution of his exposure in England to his asbestos conditions.
[84] Parker v BHP Billiton Ltd [2011] SADC 104, [937]-[938].
It is to be accepted that the Judge approached the division of responsibility between Vickers Armstrong and BHP in accordance with what he understood to be an agreement between the parties. However, not only was this an incorrect approach to the treatment of joint tortfeasors, but the Judge appears to have proceeded on a material misunderstanding. The division adopted by the Judge of equal responsibility was not agreed. This was Mr Parker’s position.
A further problem with the methodologies advanced by the parties was that they both overlooked the common law principles guiding an assessment of damages. Mr Parker by 2001 was suffering from respiratory and non-respiratory medical conditions and disabilities. He suffered from these conditions and disabilities before he developed his asbestos related conditions and in particular, any symptoms from those conditions. On the Judge’s findings, he did not suffer from any problems relating to his exposure to asbestos until about 2001. The question that arises is the extent to which any problems associated with the asbestos related conditions increased his overall disability. It might be expected that his asbestosis and chronic benign pleural asbestos disease would worsen and cause increasing symptoms, but so too would his other medical conditions. The common law approach to an assessment of damages in these circumstances would include the need for the Judge to assess the full extent of Mr Parker’s non-compensable disabilities. This would include an assessment of his asthma and emphysema. The court would also consider the natural progression of these medical conditions and disabilities. They undoubtedly would worsen and with Mr Parker’s advancing years, he would require ongoing and increasing support at home and ultimately, in the final stages of his life, he would require nursing care. These difficult questions were not addressed in the methodologies advocated by the parties or by the Judge in his findings and reasons. The Judge’s failure to make adequate findings about Mr Parker’s non-compensable medical conditions has had the result that no proper assessment of damages was made.
Another problem to be discussed relates to the Judge’s finding of the extent of the disability arising from Mr Parker’s asbestos related conditions. The Judge ultimately concluded that as at the date of judgment, Mr Parker’s compensable disabilities were responsible for one-third of Mr Parker’s overall disability. Professor Ruffin only considered Mr Parker’s other medical conditions in the most general of terms; that is, his non-respiratory conditions and disabilities. The Judge’s finding was based on an opinion of Professor Ruffin that Mr Parker’s asbestos related conditions were a 20 per cent contributor to Mr Parker’s disability. A close analysis of Professor Ruffin’s reports and evidence demonstrates that he considered that the asbestos related conditions accounted for 20 per cent of Mr Parker’s respiratory problems.
On the evidence accepted by the Judge, in particular the opinion of Professor Ruffin, a finding that the asbestos related conditions suffered by Mr Parker were responsible for 20 per cent of his overall respiratory disabilities was justified. The Judge in the ordinary course when assessing damages at common law would then make some allowance for positive and negative contingencies. The evidence supported the conclusion that there was a possibility that the asbestos related conditions would worsen and that there was a slight risk of mesothelioma developing. However, it is clear that Mr Parker’s non-compensable respiratory disabilities could also worsen.
Other relevant matters also arose for consideration. On the Judge’s findings, Mr Parker’s compensable disabilities were symptom free and caused no disability until about 2001. At this time, Mr Parker was aged about 75 years. He then had a life expectancy of a little more than five years. At the time of trial, Mr Parker was aged about 83 years and at the date of judgment, about 85 years. Unsurprisingly, Mr Parker’s aging was having an effect on his health and well-being. Further, the evidence established that Mr Parker was suffering from a number of specific injuries and ailments which were causing significant disability and having a marked effect on his enjoyment of life. It was in the context of these further matters that the Judge faced a difficult task in assessing damages.
The Judge failed to have proper regard to Mr Parker’s general medical conditions that were unrelated to his respiratory problems and were non-compensable. The Judge’s reasons only addressed these medical conditions in the most general way. When dealing with the topic of other medical conditions, the Judge, as noted above, said:[85]
As discussed the plaintiff has a number of other disabling medical conditions. I do not intend to go through the evidence as I have already made findings about his medical condition. Clearly his emphysema is the “major” contributor to his breathlessness. His conditions, while having some impact on his overall functioning are not as important as his emphysema and asbestos related conditions.
[85] Parker v BHP Billiton Ltd [2011] SADC 104, [933].
Earlier in the Judge’s reasons, the Judge simply noted:[86]
[86] Parker v BHP Billiton Ltd [2011] SADC 104, [850], [862]-[863], [865], [871].
In my view the plaintiff has established on balance that he suffers from chronic benign pleural asbestos disease, mild asbestosis, chronic obstructive pulmonary disease, bronchiectasis, and general medical problems (some of which were not disputed).
…
The defendant closed its shipyard operations at Whyalla in 1978. Mr Parker left the defendant’s employment in approximately December 1977. He worked for Parsons Engineering Company at Whyalla until April 1982 when he stopped work. At that time he was having problems with his eyesight and his doctor recommended that he apply for a disability allowance.
Mr Parker told me that over the years he had suffered from cataracts, arthritis, gall bladder problems as well as suffering some emphysema. He said that up until 2000 he was a “very fit guy”.
…
Prior to her death in 2000 he noticed he was having problems with his breathing and consulted his doctor. He was diagnosed with bronchitis. At that time he was still smoking cigarettes. He gave up smoking in 2001. He described himself as not a heavy smoker – “15 to 20 a day at most”.
…
Mr Parker said he pays someone to mow the lawns as he has difficulty managing the task due to his breathlessness. His osteoporosis also causes a problem with lawn mowing. Mr Parker said his osteoarthritis was also “very painful”. It affects his left knee, and to some extent his hands and feet. His diagnosis of osteoarthritis was made after the death of his wife.
[Footnotes omitted.]
These findings of the Judge were wholly inadequate. Mr Parker had many non-compensable medical conditions that were causing serious disabilities that were ongoing and of which many could be expected to deteriorate. On the appeal, BHP referred to a body of unchallenged evidence from which I have drawn the following summary.
Mr Parker was born in 1925. Mr Parker commenced smoking cigarettes when aged about 13 years and continued until aged about 76 years. He ceased smoking in the year 2001. He said that he smoked between 10 and 15 cigarettes per day throughout this period. He gave a history of suffering from pleurisy in about 1960. He suffers from chronic obstructive pulmonary disease and bronchiectasis. This obstructive disease has been described as emphysema. He has also developed asthma. His smoking of tobacco was said to be a cause of these problems. At times these non-compensable respiratory disabilities were described as the major contributor and at other times as overwhelming. Mr Parker receives ongoing treatment for these conditions including the use of prescribed medication. These non-compensable respiratory conditions lead to breathlessness. There is an increased risk that lung cancer will develop as a consequence of this obstructive pulmonary disease – a risk that has been assessed at ten per cent.
As a result of problems with his eyesight, Mr Parker retired in 1982. Reference is made to his suffering from cataracts. At some unspecified time, Mr Parker has undergone surgery to address the cataract problem. More relevantly, he was described as having blindness in the central vision of the right eye and restricted vision in the left. As a consequence of these problems, he retired on a disability pension.
Mr Parker suffers from osteoporosis. It may be inferred that this condition is severe as it led to a spinal fracture in about the year 2000. Mr Parker gave evidence that radiological examination disclosed “a fracture of the spinal cord”. An occupational therapist reported in 2005 that Mr Parker suffered a restriction of neck movements of more than 50 per cent.
Mr Parker suffers from osteoarthritis. This has caused severe problems with his left knee and problems with both hands and feet. The degeneration of the left knee due to arthritic changes led to the need for a full knee replacement. As a consequence of these problems, he cannot kneel or half-kneel, he avoids squatting, he walks with a waddling gait and has reduced balance. As a result, he only walks limited distances using a stick. In evidence, he described his osteoarthritic condition as “very painful”.
Mr Parker suffers problems associated with high cholesterol and blood pressure. Medication has been prescribed for both of these ongoing problems.
Mr Parker suffers from gall bladder and kidney problems. He has undergone operation on his gall bladder and to remove renal calculi. The occupational therapist reporting in October 2005 recorded that Mr Parker complained of suffering ongoing pain in the left kidney. He has suffered a hernia. He has also suffered from hydrocoele.
In 1988, Mr Parker sustained an aortic aneurysm necessitating surgical repair. Mr Parker has also had prostate problems requiring a transurethral resection. It is suspected that Mr Parker also has a disorder of his bone marrow, manifesting itself in thrombocytopaenia and anaemia. Low platelets had been detected.
Mr Parker described a number of the above medical conditions as having caused problems since his wife died in about the year 2000. He was then aged about 75 years and it is unsurprising that in the ensuing decade he would suffer from a general deterioration of his health. He claimed that his problems with breathlessness were not apparent until sometime following his wife’s death. It may be accepted that Mr Parker had suffered from a number of medical conditions causing ongoing problems from at least the 1960s. It might be expected that his general medical health deteriorated from or about the year 2000 and that his general health concerns will continue to deteriorate and cause ongoing and increasing problems. This is particularly so with respect to osteoporosis and osteoarthritis. These conditions, apart from all others, can be expected to be debilitating over time.
The summary extracted above presents a very different picture to that which appears from a review of the judgment under appeal.
Professor Ruffin, the medical assessor accepted by the Judge, as noted above, made only a general reference to some of these medical conditions. The professor’s specialty was as a respiratory physician. His reports did not disclose any detailed history or the impact of the medical conditions that he identified. The Professor did not expand on these matters in any material way when giving evidence. He did not refer to the reports of the occupational therapist. The Judge noted the lack of evidence on this topic as follows:[87]
The evidence in relation to gratuitous services both past and future is unsatisfactory. There is reasonable precision about the evidence of Mr Parker’s current disability but a paucity of evidence from the medical specialists as to the contribution his compensable diseases have to that current disability. It appears that none of the Respiratory Physicians turned their minds to the impact other medical conditions (other than other lung conditions) may have had on the need Mr Parker had for care.
[Emphasis added.]
[87] Parker v BHP Billiton Ltd [2011] SADC 104, [905].

The Judge, when addressing the evidence of the occupational therapist, pertinently recorded:[88]
Ms A Morgan, a qualified Occupational Therapist, assessed Mr Parker on 4 February 2005. Her report was tendered. Appropriately Ms Morgan stated that “his specialists will need to determine the extent to which any future care needs relate to his asbestos related lung problems, rather than to other chest and unrelated medical problems. Ms Morgan assessed his needs and expressed no opinion as to the cause of the needs.
[Footnotes omitted.]
[88] Parker v BHP Billiton Ltd [2011] SADC 104, [880].
Professor Ruffin expressed the view that Mr Parker’s exposure to asbestos left him with a disability of 20 per cent. The Judge concluded:[89]
When Professor Ruffin gave evidence he candidly conceded that Mr Parker had an obstructive condition and that it was a significant part of his breathlessness. Indeed he went as far as to say that “it’s likely to be the major cause of his breathlessness”. Professor Ruffin was of the opinion that as a result of his exposure to asbestos the plaintiff had a disability of 20 per cent.
[Footnote omitted.]
[89] Parker v BHP Billiton Ltd [2011] SADC 104, [895].
To my mind, Professor Ruffin was only addressing Mr Parker’s respiratory problems and was assigning 20 per cent of the responsibility for these problems to his asbestos related conditions. He was assigning 80 per cent to Mr Parker’s non-compensable respiratory problems. It is an entirely separate question as to the division between Mr Parker’s non-compensable non-respiratory medical conditions and his respiratory medical conditions. The Judge recognised that the “ability to enjoy the rest of his life has been severely compromised by the combination of medical conditions from which he suffers”.[90]
[90] Parker v BHP Billiton Ltd [2011] SADC 104, [899].
These problems were compounded by the Judge’s further conclusion as earlier extracted that “[t]aking all matters into account I find that the compensable disabilities account for 1/3 of his current problems”.[91] This finding cannot be sustained. At best, Professor Ruffin considered that Mr Parker’s compensable disabilities accounted for only one-fifth of his current respiratory problems.
[91] Parker v BHP Billiton Ltd [2011] SADC 104, [935].
It is to be accepted that there is a risk that the symptoms from which Mr Parker suffers as a consequence of his asbestos related conditions may increase in the future. The Judge noted this in his finding that the “20 per cent disability … may increase over time”.[92] This, in the ordinary course, would be addressed as a relevant contingency. The erroneous approach of the Judge was to treat Mr Parker’s pre-trial disability as being substantially greater than that justified by Professor Ruffin’s evidence. As earlier pointed out, this flaw in the Judge’s approach compounded his failure to have any regard or any adequate regard to the non-compensable non-respiratory medical conditions that were severely disabling in their own right.
[92] Parker v BHP Billiton Ltd [2011] SADC 104, [934].
To summarise my earlier observations, the Judge’s approach to the assessment of damages was fundamentally flawed.
The Judge, with the encouragement of the parties, adopted an approach to the assessment of damages that did not accord with the relevant common law principles. On appeal, it became apparent that the parties were not agreed on the approach and that the Judge had mistakenly adopted Mr Parker’s methodology without recognising that there was an important difference in the methodology advanced by BHP. For the reasons discussed above, the consequence of the adoption of Mr Parker’s methodology led the Judge to fail to properly address Mr Parker’s non-compensable non-respiratory medical conditions. Had the Judge adopted a conventional approach in accordance with common law principles, this problem would not have arisen.
The Judge, again with the encouragement of the parties, approached the assessment of damages on the basis that separate tortfeasors had contributed to Mr Parker’s asbestos disease. The correct approach was to find that BHP as a material contributor was responsible for the whole of the damages that were to be assessed in respect of Mr Parker’s asbestos disease and to treat BHP as being entitled to seek contribution from any other tortfeasor. In the circumstance where Mr Parker had settled his claim against a separate tortfeasor, Mr Parker was under an obligation to bring that matter to account so as to avoid double compensation. In any event, the Judge misapprehended the position of BHP on the divisibility issue. The Judge appears to have proceeded on the basis that BHP agreed with Mr Parker that there should be an equal apportionment of causative responsibility between Vickers Armstrong and BHP. The Judge was correct in understanding this to be Mr Parker’s position. However, BHP had contended that the division should be 70 per cent against Vickers Armstrong and 30 per cent against BHP. It appears that the Judge overlooked BHP’s submission.
However, it is the combined effect of all of the above matters that leads to the conclusion that this Court should reassess Mr Parker’s damages and in doing so, should address the reassessment having regard to the common law principles guiding an assessment of damages. It is to be accepted that this is a difficult task for an appeal court, having regard to the paucity of evidence on a number of matters. However, having regard to Mr Parker’s advancing years and the need to bring this proceeding to a conclusion, the Court should be robust in its approach to the resolution of the matter. Before coming to the reassessment, it is appropriate to address the remaining issue of exemplary damages.
Exemplary Damages
As noted earlier, when discussing the issue of liability, it is my view that the Judge’s criticisms of BHP concerning the Wilson report were unjustified. These criticisms were adopted and applied by the Judge when considering exemplary damages. In my opinion, the inappropriate criticism of the Judge concerning BHP’s involvement in the Wilson report materially impacted on the Judge’s assessment of damages.
Section 9(2) of the Dust Diseases Act provides:
(2) The Court should make an award of exemplary damages in each case against a defendant if it is satisfied that the defendant—
(a)knew that the injured person was at risk of exposure to asbestos dust, or carried on a prescribed industrial or commercial process that resulted in the injured person's exposure to asbestos dust; and
(b)knew, at the time of the injured person's exposure to asbestos dust, that exposure to asbestos dust could result in a dust disease.
In the present proceeding, it was established that BHP knew or ought to have known that Mr Parker was at risk of exposure to asbestos dust and knew that at the time of Mr Parker’s exposure, exposure to asbestos dust could give rise to the risk of a life threatening disease or a serious debilitating disease. The Judge concluded that risk was not far fetched or fanciful. In these circumstances, the Court was obliged to consider the topic of exemplary damages.
An immediate question arises as to whether the Court has a discretion to award exemplary damages or whether there is an obligation to do so. In this respect, the Judge concluded that section 9(2) of the Dust Diseases Act provided the Court with the discretion as to whether an award of exemplary damages should be made. The Judge, however, considered that the Court was left with a residual discretion and observed that there had to be some compelling reason once the criteria were met for the Court not to award exemplary damages.
The word “should” may be used to indicate advisability or it may be used to indicate obligation. The meaning of the word will depend on the context in which it is used. In Finance Facilities Pty Ltd v Federal Commissioner of Taxation,[93] the meaning of the word “may” was considered by the High Court. Windeyer J stressed the importance of the particular context when observing:[94]
This [question] does not depend on the abstract meaning of the word "may" but of whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised—so that in those events the "may" becomes a "must". …
When regard is had to the context of the Dust Diseases Act, the conclusion may be reached that “should” was used to indicate advisability. This is so when the particular context is an award of exemplary damages – an award to be made with a view to punishing a defendant and providing a windfall to a plaintiff. It is self-evident that circumstances may arise where it is not appropriate to punish.
[93] Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106.
[94] Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, 134; see D C Pearce and R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 6^th ed, 2006) [11.7].
It is to be noted that there is no definition of the words “exemplary damages” in the Dust Diseases Act. It may be understood that these words are used with their common law meaning. A statement of the common law principles may be found in the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Gray v Motor Accident Commission:[95]
We do not think it necessary to revisit that debate. No question arises here of an intentional wrong being committed by inadvertence. For present purposes it is enough to note two things. First, exemplary damages could not properly be awarded in a case of alleged negligence in which there was no conscious wrongdoing by the defendant. Ordinarily, then, questions of exemplary damages will not arise in most negligence cases be they motor accident or other kinds of case. But there can be cases, framed in negligence, in which the defendant can be shown to have acted consciously in contumelious disregard of the rights of the plaintiff or persons in the position of the plaintiff. Cases of an employer's failure to provide a safe system of work for employees in which it is demonstrated that the employer, well knowing of an extreme danger thus created, persisted in employing the unsafe system might, perhaps, be of that latter kind. No doubt other examples can be found.
[Footnote omitted.]
Generally at common law, it has been accepted that awards of exemplary damages are unusual, even rare.
[95] Gray v Motor Accident Commission (1998) 196 CLR 1, 9-10.
The terms of section 9(2) have effected a change. No longer will awards of exemplary damages in the case of an employer’s negligence leading to a dust disease be unusual or rare. However, the statute provides little guidance as to when such an award should be made.
The use of the expression “exemplary damages” without definition makes it plain that Parliament intended these damages to be by way of punishment and in circumstances that provide a windfall to a plaintiff. Although a question that arises for consideration is whether the conduct of a defendant calls for punishment, it will no longer be necessary to show that a defendant acted in contumelious disregard of the rights of an employee. However, there must be conduct that warrants punishment. I do not consider it helpful to speak of a residual discretion or of compelling reasons.
The Judge when considering an award of exemplary damages took account of the BHP involvement in the Wilson report. The Judge was highly critical in concluding that BHP deliberately restricted Dr Wilson’s review. As earlier noted, I agree with the observations of Doyle CJ and White J that these findings of the Judge cannot be sustained. It follows that in exercising the discretion to award exemplary damages and in assessing the amount of the award, the Judge’s discretion has miscarried. It is necessary for the members of this Court to reconsider the totality of the evidence and reach their own conclusion as to whether there should be any award of exemplary damages and if so, in what amount.
Having regard to the foregoing, in my view, one important consideration is the time at which the exposure is said to have occurred. A case involving exposure in the 1970s is in a very different category to exposure at a time following the enactment of the Dust Diseases Act. As earlier observed, the risks associated with exposure to asbestos were, in the 1970s, the subject of developing knowledge. The same cannot be said of today.
I do not consider that BHP’s conduct in the early 1970s warranted punishment. That conduct is to be assessed in the particular circumstances in which it occurred. Much of the conduct of BHP at that time can be characterised as responsible conduct by an employer. It is difficult to see any basis for punishing BHP for conduct in the 1970s. It cannot send any relevant message to employers causing employers to alter their conduct. Alteration to conduct will come about by an awareness of the provisions of the Dust Diseases Act.
Damages - Reassessment
Having regard to the foregoing, I consider that the evidence establishes that Mr Parker’s non-compensable medical conditions and disabilities commenced to have an impact on his everyday life from the time of his retirement from work on medical grounds in or about 1982. His disabilities at that time related to problems with his vision. Thereafter, as best one can judge from the evidence, he suffered from a number of different medical conditions. Many have required not only medical but hospital treatment. One might expect these to have gradually increased over time. Arthritis has affected both hands, both feet and his left knee. The problem was of sufficient severity to eventually require a complete knee replacement on the left side. His developing osteoporosis became so severe as to cause a spinal fracture.
As mentioned above, Mr Parker had been a smoker of cigarettes – “10 to 15 cigarettes per day” – for some 60 years. Unsurprisingly, as a result he was suffering respiratory problems, including the disabling condition of emphysema. These problems were compounded by an asthmatic condition. The combination of the non-compensable respiratory conditions, on the medical evidence, were responsible for 80 per cent of his respiratory problems at the time of trial. I refer to my earlier discussion about these conditions and disabilities as well as many others.
In the ordinary course, these medical conditions could be expected to worsen as Mr Parker aged. They could be expected to be increasingly disabling, leading Mr Parker to need ever increasing support in the home in regard to everyday activities and a need to seek ongoing medical review and treatment. On the balance of probabilities, the evidence established that Mr Parker would, in the foreseeable future and as a consequence of his medical conditions and disabilities, require nursing home care.
On the Judge’s findings, in or about 2001 Mr Parker first had difficulties following the onset of his compensable disabilities. The problems associated with his compensable disabilities were suffered alongside his other respiratory problems and his general medical problems. A review of the medical evidence establishes that Mr Parker’s compensable disabilities were a minor contributor to his breathlessness; in Professor Ruffin’s opinion they contributed to the extent of 20 per cent. When Mr Parker’s respiratory problems are viewed in the context of his entire medical problems, it may be safely concluded that his compensable disabilities were a minor contributor indeed to his overall disabilities. If one were to assume that his other medical disabilities were an equal contributor with his respiratory disabilities, it would follow that his compensable disabilities would be responsible for one-tenth of his overall disabilities.
Against the background of these observations, it may be concluded that Mr Parker would be entitled to a modest allowance of damages in respect of his compensable disabilities. To my mind, this is not a case for fine mathematical calculations. It calls for a broad assessment, having regard to all relevant factors. In this respect, I have reached a broad assessment of damages in the range of $30,000.00 to $40,000.00. Without more, I would select the mid-point of that range as the assessment.
This approach may be tested by adopting something of the parties’ methodologies. Leaving aside interest, the Judge started with an overall assessment of approximately $300,000.00 for Mr Parker’s entire disability. There are a number of difficulties with this assessment. To what period does it relate? What are the non-compensable non-respiratory conditions to which the Judge has had regard? However, if taking this as a starting point and one were to assume that Mr Parker’s respiratory disabilities attracted one-half of this assessment, one has a starting figure of $150,000.00. If one then were to adopt Professor Ruffin’s opinion that the asbestos related conditions were responsible for one-fifth of this amount, one has an assessment of $30,000.00. This may then be increased by a modest amount on account of negative contingencies to a figure approximating $35,000.00. Although in my view this is a very inadequate analysis, it does have the advantage of confirming my earlier approach and assessment.
I would assess Mr Parker’s damages at $35,000.00 for his compensable disabilities. It is then necessary to bring to account the $25,000.00 recovered from Amaca, which would, in the ordinary course, lead to an award of $10,000.00 by way of compensatory damages.
Earlier in these reasons, reference has been made to Mr Parker settling his claim against Vickers Armstrong and to him receiving $29,000.00 by way of damages. Mr Parker gave evidence on this topic as follows:
[Counsel] Ultimately you received a payment from Vickers -
[Mr Parker] That's correct.
[Counsel] - in consideration of that claim.
[Mr Parker] That's correct.
[Counsel] How much was the payment.
[Mr Parker] 1,000 - no, 11,500 pounds Sterling, converted to Australian dollars, approximately $29,000.
[His Honour] That is what you received at the end of the case.
[Mr Parker] That's exactly what I received.
Documents tendered in evidence indicated that this settlement occurred in or about the year 2004. Mr Parker has had the use of the monies from Amaca and Vickers Armstrong for some time.
It follows that Mr Parker has received compensation from Amaca and Vickers Armstrong in respect of his asbestos related disabilities totalling $54,000.00 as a consequence of his exposure to asbestos. As this exceeds the amount that I consider to be an appropriate assessment, it follows that his claim should be dismissed.
For the reasons discussed above, I would make no award of exemplary damages.
Conclusion
I would allow this appeal, set aside the judgment of the District Court and make an order dismissing Mr Parker’s claim. I would hear the parties as to interest and as to costs both of the trial and of the appeal.