(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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
BHP Billiton Ltd v Parker [2012] SASCFC 73
Case
[2012] SASCFC 73
Decision Date
CaseChat Overview and Summary
The appellant, BHP Billiton Ltd, appealed to the Full Court of the Supreme Court of South Australia against a District Court judgment that found it liable in negligence for causing the respondent, Mr. Parker, an asbestos-related disease. Mr. Parker, a shipwright, had been exposed to asbestos dust and fibres during his employment at BHP Billiton's Whyalla shipyard, and had also been exposed to similar substances while working in a UK shipyard. BHP Billiton accepted it owed Mr. Parker a duty of care and that he suffered from an asbestos-related disease, but challenged the findings that it had breached its duty of care and that this breach had caused his illness. The company also appealed the assessment of damages and the award of costs on an indemnity basis.
The central legal issues before the Full Court were whether BHP Billiton had breached its duty of care to Mr. Parker by failing to take reasonable steps to protect him from exposure to asbestos dust and fibres, and whether such a breach had caused his asbestos-related disease. The court also considered whether the findings of fact made by the trial judge regarding the foreseeability of risk and the availability of preventative measures were appropriate, and whether the damages awarded and the basis of the costs order were justified.
The Full Court dismissed the appeal against the finding of liability. It reasoned that by 1971/72, there was well-established knowledge of the significant risks associated with asbestos exposure, including the potential for serious and life-threatening diseases like asbestosis and lung cancer, even for workers not directly handling asbestos products but working in their vicinity. The court found that BHP Billiton ought to have foreseen this risk and that scientific material was readily available. Crucially, the court held that BHP Billiton had failed to implement reasonably available measures to minimise or suppress asbestos dust and fibres in the workplace, and that it was not necessary for Mr. Parker to prove that the dust levels exceeded specific national standards to establish a breach of duty. The court agreed in substance with the trial judge's findings of fact regarding the employer's knowledge and the foreseeability of harm.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
DOYLE CJ
WHITE J
(dissent)
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 omittedWe agree in substance with the findings of fact by the Judge, summarised above, although some findings call for some qualification.