BHP Billiton Ltd v Parker

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.