CSR Limited v Amaca Pty Ltd
[2016] VSCA 320
•16 December 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0121
| CSR LIMITED (ACN 000 001 276) | First Applicant |
| and | |
| BRADFORD INSULATION INDUSTRIES PTY LTD (ACN 000 078 357) | Second Applicant |
| v | |
| AMACA PTY LTD (ACN 000 035 512) (under NSW Administered Winding Up) | Respondent |
S APCI 2016 0048
| AMACA PTY LTD (ACN 000 035 512) (under NSW Administered Winding Up) | Cross-Applicant/Respondent |
| v | |
| CSR LIMITED (ACN 000 001 276) | First Cross-Respondent/ First Applicant |
| and | |
| BRADFORD INSULATION INDUSTRIES PTY LTD (ACN 000 078 357) | Second Cross-Respondent/ Second Applicant |
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| JUDGES: | MAXWELL P, BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 August 2016 |
| DATE OF JUDGMENT: | 16 December 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 320 |
| JUDGMENT APPEALED FROM: | [2015] VSC 582 (Macaulay J) |
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TORTS – Contribution – Contribution claims between tortfeasors – Tortfeasors were manufacturers and suppliers of asbestos thermal insulation – Exposure – Whether exposure to asbestos thermal insulation established – Inferences – Findings of exposure dependent upon inferences drawn from facts of general application – Causation – Whether causation established – Findings of causation dependent upon inference drawn from facts of general application – Whether trial judge erred in finding causation established.
EVIDENCE – Hearsay – Exceptions to hearsay – Whether statements made to doctors by unavailable witnesses were admissible to prove a person’s exposure to asbestos – Revival of memory – Reading aloud parts of a document – Evidence Act 2008, ss 32(3), 63(2), 136 and 192(2).
LIMITATION OF ACTIONS – Statutory construction of s 24(4) of the Wrongs Act 1958 as it applied to torts committed on or before 31 December 1971 – Statutory construction of s 24(4) of the Wrongs Act 1958 as it applied to torts committed after 31 December 1971 – Wrongs Act 1958, s 24 – Limitation of Actions Act 1958, s 5(1)(d) – Wrongs Act 1972, s 3.
EQUITY – Contribution – Partners – Coordinate liabilities – Whether action for equitable contribution subsumed by statutory provisions providing for contribution between tortfeasors – Whether action for equitable contribution only available in cases where no statutory right of contribution available – Defences – Laches – Statutory time limit applied by analogy – Whether defence of laches available notwithstanding that action within time prescribed by a statutory time limit applied by analogy.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants/Cross-Respondents | Mr B F Quinn QC with Mr B Barr | Moray and Agnew |
| For the Respondent/Cross-Applicant | Mr T G R Parker SC with Mr D J Wallis | DLA Piper Australia |
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MAXWELL P
BEACH JA
KAYE JA:
Introduction
The respondent (formerly known as James Hardie & Co Pty Ltd, and to which we shall refer as ‘James Hardie’) was, for some decades before the 1960s, a substantial manufacturer of asbestos insulation products in Australia. Until 1964, it supplied those products in its own right to customers, including to the State Electricity Commission of Victoria (‘SECV’).
By a Deed of Agreement dated 24 September 1964 (the ‘Partnership Deed’), James Hardie entered into a partnership with the two applicants, CSR Limited (‘CSR’) and Bradford Insulation Industries Pty Ltd (‘Bradford’). The partnership was referred to as the Hardie-BI Company. By the terms of the agreement, James Hardie and CSR jointly manufactured and supplied a number of specified products which were various forms of asbestos thermal insulation (‘ATI’). Under the Partnership Deed, Bradford was appointed the sole selling and distribution agent for the partnership.
Between September 1964 and May 1974 (the ‘partnership period’), and pursuant to the Partnership Deed, James Hardie and CSR manufactured Hardie-BI products and Bradford distributed those products. The Hardie–BI partnership was terminated by a Deed of Dissolution dated 26 June 1974. Before, during and after the partnership period, work involving the installation, maintenance and removal of ATI was undertaken at a number of power stations and related facilities owned or operated by the SECV. During and after the partnership period, that ATI included Hardie-BI products.
Subsequently, a number of individuals who had worked at the SECV facilities, or their dependants, commenced proceedings against SECV, claiming damages in respect of respiratory conditions that they alleged had been caused by exposure to asbestos fibre released from ATI at the SECV facilities. The SECV settled those claims. By the terms of three General Settlement Agreements (‘GSAs’) entered into between James Hardie and the SECV in 1993, 2004 and 2007 respectively, James Hardie agreed to make contributions towards those settlements. The contributions by James Hardie were calculated in accordance with formulae set out in the GSAs. Neither CSR nor Bradford knew of the GSAs at the time they were entered into, or had any input into the negotiation of their terms or the settlement of any claims under them.
By the GSAs, James Hardie agreed to contribute to the SECV settlements for claims arising from asbestos exposure at seven specific SECV sites. James Hardie had supplied asbestos insulation products to each of those sites, either in its own right or as a member of the Hardie-BI partnership. In effect, under the GSAs, James Hardie paid contribution to the SECV based upon a formula which contained an attribution of 25 per cent responsibility to James Hardie for each claim. That formula did not purport to apply only to those claims that stemmed from an illness necessarily caused by fibres emanating from James Hardie product or Hardie-BI product. Rather, it required James Hardie to make the contribution, if the relevant claimant had suffered damage from likely exposure to asbestos fibres at one of the seven SECV locations within a certain timeframe.
In the present proceeding, James Hardie claimed contribution from CSR and Bradford on two legal bases. First, it claimed contribution against both CSR and Bradford pursuant to s 24 of the Wrongs Act 1958 (‘Wrongs Act’). Secondly, James Hardie claimed equitable contribution against CSR based on its alleged coordinate liability as a former partner pursuant to ss 10 and 12 of the Partnership Act 1892 (NSW) (‘Partnership Act’). James Hardie’s claims were not for contribution to the whole of the amount paid to the SECV by it under the GSAs, as those amounts had not been limited to contribution in respect of injuries suffered by the claimants arising out of their exposure to asbestos fibres from the Hardie-BI products. Rather, James Hardie’s claim against CSR and Bradford was limited to that proportion of the payments made by it to the SECV under the GSAs which was attributable to the exposure of those claimants to asbestos fibres from Hardie-BI products.
James Hardie claimed contribution in respect of the settlement sum that it had paid to SECV relating to 204 claimants. A large range of trades and occupations were represented among the claimants whose settlements were the subject of the proceeding. Ultimately, eight claimants were selected to be the subject of the decision at the trial. They included: contractor and employee laggers; electrician instrument makers; a fitter; a rigger; and a cleaner. The eight claimants were Mr David Alexander, Mr Hendrick (Hank) De Vries, Mr Stephen Benjamin, Mr Walter Reid, Mr Bruce Johnstone, Mr Jan Kracht, Mr Brian McGuire and Mr Keith Preston.
The issues at trial
As the trial concerned James Hardie’s claims in respect of those eight SECV claims, and there were both common and individual issues raised by them, CSR and Bradford filed a separate defence to the statement of claim in relation to each claimant. In respect of each claimant, CSR and Bradford accepted that:
(a) the claimant suffered the primary injury or condition alleged by James Hardie;
(b) with the exception of Mr Johnstone, the claimant’s injury or condition was caused (in the legal sense) by exposure to asbestos fibre;
(c) if it was proved that the claimant’s injury or condition was caused by exposure to asbestos fibre from Hardie-BI products, then to that extent such injury or condition was caused by the negligence of each of James Hardie, CSR and Bradford;
(d) the amount for which the SECV settled the claimant’s claim represented a reasonable assessment of his loss and damage, although not a reasonable assessment of the extent to which that loss and damage was attributable to exposure to asbestos at the SECV facility; and
(e) CSR and James Hardie had a coordinate liability in respect of Hardie-BI products.
As a consequence of those concessions, the issues which remained for determination in relation to each claimant were:
(f) whether the claimant was exposed to asbestos fibre from Hardie-BI products used in the SECV facilities to which the GSAs applied;
(g) if so, what proportion of the amounts paid by James Hardie to the SECV under the applicable GSA (and associated cost) was attributable to James Hardie’s potential liability to pay contribution to the SECV in respect of Hardie-BI products, as opposed to other products containing asbestos;[1]
[1]The other products were either ATI products the same as Hardie-BI products but produced by James Hardie alone before the partnership period, or other ATI products containing asbestos (such as rope, cord or limpet) that were not produced by James Hardie before the partnership period or by Hardie-BI.
(h) whether James Hardie was entitled to claim statutory contribution from CSR and Bradford pursuant to s 24 of the Wrongs Act. (This issue included the question whether James Hardie was precluded from claiming such statutory contribution as might otherwise have been available to it);
(i) whether James Hardie was entitled to claim equitable contribution against CSR in addition to, or in the alternative to, statutory contribution claims under the Wrongs Act;
(j) if yes to (d), whether James Hardie was precluded by the operation of s 24(4) of the Wrongs Act, applied by the doctrine of analogy, from recovering equitable contribution; and
(k) whether James Hardie was precluded by laches, waiver or acquiescence from recovering equitable contribution.
The trial
At the trial, the parties agreed, and the Court accepted, that the Court would make general findings of principle, but would determine James Hardie’s case in respect of the eight claimants only. Directions would then be made for the disposition of James Hardie’s claims in respect of the remaining 196 claimants. Accordingly, the judge heard general evidence in relation to all the claimants, and specific evidence in respect of each claimant.
There was no direct evidence of exposure. All eight claimants had died before trial. Only a few workers from the relevant period are now alive, and none were called to give evidence at trial regarding the nature of their work or their exposure to ATI at the various work sites. The proceedings by the respective claimants against SECV did not run to trial, but were settled after they had been issued. Thus, there was no material admitted into evidence in any previous court proceeding that was available.
As a result, James Hardie’s claim was based on circumstantial evidence, to which we shall refer in more detail when considering appeal grounds 3 and 4. James Hardie adduced evidence from the following witnesses:
(l) Mr John Bradley Drewett. During the relevant period, Mr Drewett was employed by the SECV in various senior positions in finance, personnel, training and development. In the late 1990s, Mr Drewett was engaged as a consultant to the Victorian Managed Insurance Authority, which was responsible for managing the compensation liabilities of the SECV and its successors. In that capacity, Mr Drewett had prepared assessments, for each claimant worker, in the form of ‘Occupational Exposure Assessments’ (‘OEAs’), which identified the probable cause of the worker’s exposure to ATI. Mr Drewett prepared that assessment from documents and information available to him relating to each claimant. At trial, Mr Drewett’s witness statement was tendered in evidence, and he gave viva voce evidence;
(m) Mr Bruce Hilton, an employee of Bradford during the relevant period, gave evidence by way of two witness statements;
(n) Mr Ron Hinton was, during the relevant period, employed as the manager of the Hardie-BI plant in Sydney. Two witness statements by Mr Hinton were tendered in evidence;
(o) Mr Enrico Amalfi, during the relevant period, worked as a delivery driver for Bradford. Mr Amalfi’s witness statement was tendered in evidence;
(p) Professor Douglas Henderson, a pathologist, who has relevant expertise in asbestos-related disorders, including mesothelioma, gave evidence by the tender of two expert reports. He also gave viva voce evidence; and
(q) Professor Richard Fox, a physician specialising in haematology and medical oncology, gave viva voce evidence, and his report in relation to each of the claimants was tendered through him.
CSR and Bradford did not adduce evidence from any witness. Each party tendered a substantial number of documents, largely comprising business records relating to the construction and maintenance of the SECV facilities, and the materials possibly used during that construction and maintenance. Summaries of those documents were also tendered.
The judgment
The nature of the claim made by James Hardie involved a large number of issues for determination by the judge, notwithstanding the concessions made by the applicants before and during the trial. In a detailed and thorough judgment, the judge dealt, with considerable care, with each of those issues.[2] With respect, his Honour’s reasons for judgment are a model of order and clarity.
[2]Amaca Pty Ltd v CSR Ltd & Anor [2015] VSC 582 (‘Reasons’).
A number of the judge’s conclusions were not the subject of the proceeding before this Court. We shall mention some of them in passing where necessary to explain the decisions which are in contention in this appeal. What follows is a summary of those decisions.
The first issue was whether the histories given by the various claimants to medical practitioners, as to their employment at SECV sites and their exposure to asbestos dust at those sites, were admissible to prove those facts. The judge held that the evidence was admissible pursuant to s 63(2)(a) of the Evidence Act 2008 (‘Evidence Act’). The medical practitioners could not recall the interviews that they had conducted with the claimants, or the contents of those interviews. The judge gave James Hardie leave to, in effect, read the reports of the medical practitioners into evidence under s 32(3) of the Evidence Act.[3]
[3]Reasons [177]–[189].
The next issue concerned the correct approach to the question of contribution. The judge considered that question, first, in relation to ‘divisible’ illnesses, such as asbestosis, and, secondly, in relation to ‘indivisible’ illnesses, such as mesothelioma and lung cancer. In respect of the divisible illnesses, the judge concluded that the correct approach was to identify the particular injury and damage sustained by the claimant as a result only of exposure to Hardie-BI asbestos fibre. The second step in the process was to determine what was just and equitable contribution by each party pursuant to s 24 of the Wrongs Act. In that respect, it was agreed between the parties that the appropriate contribution share would be 50 per cent in each case.[4]
[4]Ibid [258]–[259].
In respect of indivisible illnesses, the judge determined, first, that the entitlement to contribution was to be assessed without regard to any need to ‘divide’ or ‘apportion’ the extent of the causal contribution which the Hardie-BI product made to the claimant’s loss. If the Hardie-BI product had made an above-background causal contribution to a claimant’s indivisible injury and damage, then each of the parties (Hardie and CSR-Bradford) would have an entitlement and liability to contribution in respect of that claimant. The joint liability of those parties was in respect of the whole of the claimant’s damage, which had been already capped at the 25 per cent contribution payment made by James Hardie to SECV. The judge further considered that the question of the amount to be contributed by CSR was to be determined by a comparison of the responsibilities of the parties before the Court, disregarding the possible wrongdoing of other tortfeasors not before the Court.[5]
[5]Ibid [273].
The judge then considered the question of the entitlement of James Hardie to contribution, first, under s 24(4) of the Wrongs Act, as it applied to torts committed before 31 December 1971, and, secondly, as it applied to torts committed after that date.
In respect of the claims to which the pre-1972 version of s 24(4) of the Wrongs Act applied, the judge concluded that no action for contribution was maintainable by James Hardie against CSR and Bradford, unless James Hardie had been served (as a party to the action) with a writ issued by the relevant claimant, and, in addition, James Hardie had sought contribution from CSR and Bradford within the time specified in s 24(4) for doing so.[6]
[6]Ibid [357].
In respect of the claims to which s 24(4) of the Wrongs Act applied after 31 December 1971, the judge determined that James Hardie’s right to seek contribution became barred under s 24(4)(a)(i) if:
(r) the claimant’s writ against the SECV was filed on or before 4 November 2002, and James Hardie had not commenced its contribution claim before the expiry of six years from that date; or
(s) the claimant’s writ against the SECV was filed after 4 November 2002, and James Hardie had not commenced its contribution claim before the expiry of three years from that date.[7]
[7]Ibid [379].
The judge then considered the question of the entitlement of James Hardie to equitable contribution against CSR, based on their coordinate liabilities as partners in the Hardie-BI partnership between 1964 and 1974. The claim was based in part on ss 10 and 12 of the Partnership Act. Although CSR accepted that it was subject to such liability, the judge considered it necessary to determine the existence and nature of that liability. After reviewing the relevant authorities in detail, his Honour concluded that, in the alternative to its claim against CSR and Bradford under the Wrongs Act for contribution, James Hardie also had a recognisable right of action against CSR based on equitable principles.[8]
[8]Ibid [446].
His Honour then considered the question of the time limit governing the claim for equitable contribution. His Honour noted that there was no limitation period prescribed for such a proceeding under the Limitation of Actions Act 1958 (‘LAA’). However, s 5(8) of that Act permitted the Court to apply a provision of s 5 to such a claim by the doctrine of analogy. The judge concluded that, by analogy, the applicable limitation period was that prescribed in s 5(1)(a) of the LAA, as the equitable action in contribution corresponded to an action maintainable at law based on an implied contract between the partners to contribute equally to partnership liabilities for wrongs. Thus, his Honour concluded that the applicable limitation period was six years from the date when James Hardie paid its contribution to SECV under the GSAs.[9]
[9]Ibid [461]–[462].
The judge further concluded that, for claims for equitable contribution brought within that six year period, CSR would also be entitled to rely on the equitable defence of laches, if there was an unreasonable delay in bringing the contribution claim once a cause of action had accrued, and the delay had given rise to prejudice in the form of changed circumstances.[10]
[10]Ibid [477].
The judge then applied those principles to the claims made by James Hardie in respect of each of the eight claimants. His Honour’s conclusions were set out in a helpful table, as follows:[11]
[11]Ibid [844]. The table in the judge’s reasons also contained some alternative conclusions in the event that the judge was held to be wrong in some of his primary conclusions. Those alternative conclusions have been omitted here.
Claimant & illness Hardie-BI exposure proven? Wrongs Act claim Equitable claim Amount
(exclusive of interest)Pre-31 Dec 1971 Post 31 Dec 1971 Limitation by analogy Laches defence Alexander
AsbestosisYes Barred Barred Not barred No $35,000 De Vries
MesotheliomaNo - - - - Nil
Benjamin
MesotheliomaYes Barred Not barred NA NA $90,268.09 Reid
MesotheliomaYes Barred Barred Not barred Yes Nil Johnstone
Lung cancerYes NA Not barred NA NA $90,000 Kracht
MesotheliomaYes Barred NA Not barred No $15,000 McGuire
MesotheliomaYes Barred Barred Not barred No $36,304.03
Preston
MesotheliomaYes Barred Barred Not barred Yes Nil Issues on appeal
CSR and Bradford seek leave to appeal from his Honour’s decision. The application for leave to appeal contains 10 grounds. In turn, James Hardie seeks leave to appeal from certain aspects of the judge’s decision, its application for leave containing five grounds. In effect, the applications and cross-applications relate to five principal issues.
The first issue concerns the admissibility of the exposure histories in the medical reports. By ground 1 of the application, CSR and Bradford contend that the histories were inadmissible as evidence of the facts stated by the claimants to the medical practitioners. Alternatively, they contend that, if the asbestos exposure histories were admissible for that purpose, the judge should have exercised the discretion in s 136 of the Evidence Act to limit their use.
The second issue is whether the circumstantial evidence was sufficient to support the inferences drawn by the judge that each of the claimants (except Mr De Vries) was exposed to asbestos dust emanating from Hardie-BI products at the SECV facilities. CSR and Bradford contend that it was not open to his Honour to draw those inferences. Alternatively, they contend, his Honour gave undue weight to the evidence of the claimants’ possible exposure to asbestos from Hardie-BI products, and insufficient weight to the evidence of their possible exposure to asbestos from non-Hardie-BI products. Specific complaint is made in relation to the five claimants in respect of whom the judge found in favour of James Hardie.[12] In addition, CSR and Bradford contend that the judge erred in finding that the evidence established that Mr Johnston’s lung cancer was caused by exposure to asbestos.
[12]Mr Alexander, Mr Benjamin, Mr Johnstone, Mr Kracht and Mr McGuire.
The third issue concerns the limitation periods for statutory contribution claims under the 1958 and 1972 versions of the Wrongs Act respectively.[13] By ground 4 of the cross-application, James Hardie contends that the judge erred in concluding that the 1958 version of s 24(4) of the Wrongs Act precluded it from bringing contribution claims in respect of torts committed before 31 December 1971. By ground 5 of the cross-application, James Hardie contends that the judge erred in holding that the 1972 version of s 24(4) of the Wrongs Act precluded it from bringing a contribution claim in respect of a tort committed after 31 December 1971, unless that claim was brought within the time prescribed by s 24(4)(a)(i).
[13]The Wrongs Act 1972 relevantly amended s 24(4) of the Wrongs Act and applied to torts committed on or after 1 January 1972. See further discussion at [192]–[193] below.
The fourth issue relates to the availability of the equitable claim for contribution. By ground 5 of the application, CSR and Bradford contend that the judge erred in concluding that James Hardie had a recognisable right of action against CSR based upon equitable principles. By ground 3 of the cross-application, for its part, James Hardie contends that the judge erred in holding that James Hardie did not have such a right to equitable contribution in circumstances where its rights of statutory contribution under the Wrongs Act were not barred.
The fifth issue concerns the defence of laches. By ground 1 of the cross-application, James Hardie contends that the defence of laches was not available to CSR in answer to James Hardie’s claim based on the coordinate liability of CSR. By ground 2 of the cross-application, James Hardie further contends that, even if the defence were available, it should not have succeeded in respect of the claims relating to Mr Reid and Mr Preston, as CSR did not lead evidence of any prejudice to it arising from the delay in the institution of the proceedings for contribution.
In these reasons, we shall deal with those five issues in the order in which we have just outlined them. Further, like the judge, we will only refer to CSR when referring to the two applicants for leave to appeal, unless the context requires us to mention Bradford specifically or to differentiate between the two.[14]
[14]Reasons [42].
The admissibility of the medical histories
As already mentioned, James Hardie sought to have the medical reports admitted as proof of the facts stated by the respective claimants. His Honour made a provisional ruling, indicating that he was inclined to admit the representations made by those claimants, as recorded in the medical reports, into evidence as an exception to the hearsay rule. The parties thereafter proceeded on that basis. In his judgment, the judge confirmed his provisional ruling.
Before turning to his Honour’s reasons for that decision, it is necessary to set out, briefly, the effect of the evidence in question. James Hardie relied on the medical reports of Professor Richard Fox, who had interviewed each of the eight claimants. James Hardie also relied on reports of Dr Roger Woodruff, who had interviewed Mr Johnstone and Mr McGuire.
In each report, Professor Fox recorded the work history given to him by the claimant. That history, typically, recorded a number of background matters, including the claimant’s trade, the dates upon which he commenced work at particular facilities, and the activities in which the claimant was engaged that had brought him into contact with asbestos insulation products.
Initially, James Hardie sought only to tender the written medical reports. After objection on behalf of CSR, Professor Fox was called to give evidence. He said that he had asked each claimant a series of questions in order to ascertain his work history. Professor Fox made handwritten notes. Within a day or so of the interview, he dictated his report from those notes. On occasion, the claimant would be accompanied by his spouse or other family member. Ordinarily, that other person did not provide much detail of the work, but assisted in clarifying the sequence of different jobs and locations. Importantly, Professor Fox stated that he had no independent recollection of anything stated to him by any of the individual claimants. Indeed, he had no recollection of any of the interviews, except that he recalled meeting Mr Benjamin in Canberra.
The medical reports of Dr Woodruff were also tendered. It was agreed that the judge should accept that, as with Professor Fox, Dr Woodruff’s reading of his reports would not have revived any actual memory of what the claimants had told him.
James Hardie contended at trial that the evidence of what was said by a claimant to a medical practitioner was admissible pursuant to s 63(2)(a) of the Evidence Act. As the medical practitioners had no independent recollection of matters recorded in the medical reports, James Hardie relied on s 32(3) of the Evidence Act, which gives the Court a discretion to permit a witness to refer to a document in order to try to revive a memory about a fact or opinion contained in the document and to read aloud from that document.
A difficulty concerning the application of s 32 was that, in each case, the medical report had been tendered without the doctor reading it to the court under s 32(3) of the Act. For the purpose of the argument, however, CSR agreed that the judge could act on the basis that each doctor had in fact read aloud the contents of the work history sections of his reports. CSR submitted that the evidence derived from the medical reports did not constitute first-hand hearsay for the purpose of s 63(2) of the Act but, rather, was second-hand, or more remote, hearsay.
The judge rejected CSR’s argument. His Honour said:
If the relevant section of the medical report was read aloud to the court, it would then be treated as if the doctor had recounted, in his own words, the representations that had been made to him by the personal injury claimant he had interviewed. Had any doctor been able to do that from memory in the witness box, it would have amounted to first hand hearsay and been admissible under s 63(2)(a). When the doctor is allowed to do the same thing by reading the contents of the medical report when it did not revive actual memory, the evidence has the same character. I agree, with respect, with the learned author of Cross on Evidence who wrote:
The contents of the document thus apparently comes into evidence — not directly since the document is not marked as an exhibit and is not part of the evidence in its own right, but as part of the witness’s oral evidence.[15]
[15]Ibid [177] (citations omitted).
The judge further ruled that, if an application had been made to him under s 32(3) of the Evidence Act, he would have given Professor Fox leave to use his report to try to revive his memory. His Honour ruled that, under s 192 of the Evidence Act, he should have given leave to Professor Fox, and to the other medical practitioners, to read aloud as part of their evidence so much of the medical report as related to those facts.
The ground of appeal is in these terms:
(1)The learned trial judge erred in admitting the asbestos exposure histories contained in the medical reports of Professor Fox and Dr Woodruff into evidence for the purpose of proving sub-group claimants’ exposures to asbestos products … and [the learned trial judge] ought to have held that the asbestos exposure histories were inadmissible because:
(a)they were excluded by operation of the hearsay rule in s 59(1) of the Evidence Act;
(b)they did not comprise first-hand hearsay within the meaning of s 62(1) of the Evidence Act and, accordingly, they did not fall within the exception to the hearsay rule in s 63(2)(a) of the Evidence Act; and
(c)section 32 of the Evidence Act does not have the effect of converting second-hand or more remote hearsay into first-hand hearsay such that s 63(2)(a) of the Evidence Act may render such hearsay admissible.
Counsel for CSR noted that the exception to the hearsay rule contained in s 63 of the Evidence Act only applied to ‘first-hand’ hearsay, as defined in s 62(1) of the Act. He submitted that the histories recorded in the medical reports were not first-hand hearsay but, rather, were second-hand or more remote hearsay. Counsel submitted that s 32 of the Act did not provide a mechanism by which a witness might give evidence that was otherwise inadmissible under the Act. In support of that proposition, he noted that the provisions relating to the admissibility of hearsay evidence were contained in ch 3 of that Act, which was concerned with the admissibility of evidence. On the other hand, s 32 fell within ch 2 of the Act, which dealt with matters relating to the adducing of evidence.
Counsel accepted that the common law did permit a witness to give evidence as to a matter previously recorded by the witness, notwithstanding that at the time of giving evidence the witness did not have any memory of the facts contained in the record. In that way, the common law did not treat evidence given by a witness who recited their recorded memory as hearsay. Instead, it was treated as part of the witness’s oral testimony. The submission for CSR was that the common law created a legal fiction in treating such evidence in that way. Counsel pointed out that the artificiality of the fiction has been recognised by some courts, which have described evidence given in that way as constituting oral testimony by a witness about the contents of a written document. Counsel referred to R v Naidanovici,[16] Gillespie v Steer[17] and R v Keogh [No 2].[18]
[16][1962] NZLR 334 (‘Naidanovici’).
[17](1973) 6 SASR 200, 202–3 (‘Gillespie’).
[18][2015] SASC 180, [22]–[24] (‘Keogh’).
Counsel submitted that the Evidence Act did not continue the fiction. Rather, it contained a specific definition of hearsay evidence in s 59. Counsel noted that the exceptions to the hearsay rule contained in pt 3.2 div 2 of the Act (including s 63) were confined to ‘first-hand’ hearsay. Thus, it was submitted, the reports of the medical practitioners were not admissible to prove the facts stated by the respective claimants. The fact that the medical practitioner was allowed to tender, or read, those parts of the medical reports to the court, under the mechanism provided by s 32 of the Act, did not alter the status of the contents of the reports.
In response, counsel for James Hardie referred to the earlier common law cases, including the decision of the Full Court of this State in R v Alexander and Taylor.[19]In that case, evidence given by a witness of facts that the witness had recorded in a contemporaneous document was regarded as part of the oral testimony of the witness, notwithstanding that the witness had no memory of the facts contained in the document. Accepting that the common law indulged in a fiction in that regard, counsel argued that s 32 of the Evidence Act had not changed the law. In particular, counsel submitted, it would be quite artificial to draw a distinction between, on the one hand, ‘refreshed memory’ and, on the other hand, ‘recorded memory’, in respect of evidence given by a witness who had used a document to ‘revive’ his or her memory under s 32 of the Act. The distinction between a witness’s refreshed memory and recorded memory was often blurred and unclear. Thus, it was submitted, s 32 of the Evidence Act was not intended to alter the long-standing common law principle.
[19][1975] VR 741 (‘Alexander and Taylor’).
Consideration
We are concerned here with the nature of evidence given by a witness about a previous representation made to the witness, where the witness has no recollection of the representation and has to rely on a contemporaneous record of it. For convenience we shall refer to that evidence as ‘evidence of recorded memory’.
The submissions raise two questions in particular. The first question is whether evidence given by a witness of a recorded memory of particular facts is necessarily hearsay evidence by that witness of those facts. (If it were, evidence of recorded memory of a reported fact would be second-hand hearsay.) The second question is whether, if that evidence is hearsay, s 32 enables the witness to give the evidence notwithstanding that it would otherwise be inadmissible.
For the reasons which we shall set out below, we consider that the first question is to be answered in the negative. That is, evidence by a witness as to recorded facts is not hearsay for the purposes of the Evidence Act. As a result, evidence of recorded memory of a reported fact is firsthand hearsay. Were the position otherwise, s 32 could not operate to make the evidence admissible.
It is, of course, clear that the evidence of the medical practitioners could only have been admitted to prove the facts stated to them by the claimants if that evidence constituted ‘first-hand’ hearsay, as defined in s 62 of the Evidence Act. It is convenient to set out the relevant provisions of pt 3.2 of the Act relating to hearsay evidence.
Section 59(1) provides the fundamental rule against the admissibility into evidence of hearsay evidence. It states:
Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
Part 1 of the Dictionary to the Act defines ‘previous representation’ to mean:
a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.
Division 2 of pt 3.2 of ch 3 contains a series of exceptions to the hearsay rule. Those exceptions are confined to hearsay which is ‘first-hand’ as defined in s 62(1), which provides:
A reference in this Division … to a previous representation is a reference to a previous representation that was made by a person who had personal knowledge of an asserted fact.
The exception ultimately relied on by James Hardie was that provided by s 63(2)(a). Section 63(1) provides that the section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. The condition in s 63(1) was satisfied in this case, as none of the claimants were available to give evidence.
Section 63(2)(a) then states:
(2) The hearsay rule does not apply to—
(a)evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made … .
If the medical practitioner had been able to recall the facts stated by the claimant to him, the practitioner would have been able to give evidence as to those matters, and that evidence would have been admissible under s 63(2)(a) as the medical practitioner was ‘a person who heard the representation being made’.
Since, however, the medical practitioners could not recall the histories given to them by any of the claimants, James Hardie sought to rely on s 32 of the Act, which provides:
32 Attempts to revive memory in court
(1)A witness must not, in the course of giving evidence, use a document to try to revive his or her memory about a fact or opinion unless the court gives leave.
(2)Without limiting the matters that the court may take into account in deciding whether to give leave, it is to take into account—
(a)whether the witness will be able to recall the fact or opinion adequately without using the document; and
(b)whether so much of the document as the witness proposes to use is, or is a copy of, a document that—
(i)was written or made by the witness when the events recorded in it were fresh in his or her memory; or
(ii)was, at such a time, found by the witness to be accurate.
(3)If a witness has, while giving evidence, used a document to try to revive his or her memory about a fact or opinion, the witness may, with the leave of the court, read aloud, as part of his or her evidence, so much of the document as relates to that fact or opinion.
(4)The court is, on the request of a party, to give such directions as the court thinks fit to ensure that so much of the document as relates to the proceeding is produced to that party.
We would uphold CSR’s submission that s 32 does not bear on the question of admissibility. It is a machinery provision. A grant of leave under s 32(3) does not enable a party to adduce, through a witness, hearsay evidence which does not fall within any of the statutory exceptions to the hearsay rule.
The critical question, therefore, is whether the evidence by the medical practitioners of their recorded memories of the medical histories was admissible as firsthand hearsay. More particularly, the question is whether in relying on what they had recorded of the ‘representations’ made to them by the claimants, they were ‘giving evidence of’ those representations, within the meaning of s 63(2)(a).
The position at common law
As already noted, evidence given by a witness as to his or her recorded memory was admissible at common law as part of the witness’s oral testimony, and was not regarded as hearsay evidence. A brief review of the cases demonstrates that the common law characterisation of that evidence was deeply embedded in trial practice at the time of the passing of the Evidence Act 1995 (Cth), which was substantially the basis of the Evidence Act in Victoria when it was enacted in 2008.
The case law on this topic can be traced at least to the earlier part of the 19th century. Two decisions of the Court of King’s Bench in that period adequately illustrate the evolution of the principle. Maugham v Hubbard & Robinson[20] concerned an action in assumpsit for money had and received. The plaintiff’s witness had no recollection of having received the money the subject of the claim. Having been permitted by the court to do so, the witness referred to a cash book and stated that, while he still had no recollection of the transaction, he had no doubt that he had received the money. The cash book was not admissible in evidence, as it had not been stamped.
[20](1828) 8 B & C 14; 108 ER 948.
The evidence was held admissible. Lord Tenterden CJ stated:
In order to make the paper itself evidence of the receipt of the money it ought to have been stamped. The consequence of its not having been stamped might be, that the party who paid the money, in the event of the death of the person who received it, would lose his evidence of such payment. Here the witness, on seeing the entry signed by himself, said that he had no doubt that he had received the money. The paper itself was not used as evidence of the receipt of the money, but only to enable the witness to refresh his memory; and when he said that he had no doubt he had received the money there was sufficient parole evidence to prove the payment.[21]
[21]Ibid 15–16; 949.
In The King v The Inhabitants of St Martin’s, Leicester,[22] a question arose concerning proof of the letting of premises. A witness, who had no recollection of the transaction, was permitted by the Court of Sessions to refer to an entry in a book kept by him. On appeal, the Court of King’s Bench Division held that the evidence of the witness was admissible as part of his testimony. Lord Denman CJ stated:
The witness’s statement was, that he had no memory of these things, but, on reading the entry, he had no doubt that the fact really happened. The Sessions permitted him to look at the entry for the mere purpose of refreshing his memory, and that was quite right.[23]
[22](1834) 2 A D & E 210; 111 ER 81.
[23]Ibid 214; 83.
More than a century later, a similar question arose in the Court of Criminal Appeal in R v Bryant & Dickson.[24] In a prosecution for fraud, the prosecution called a witness who had kept a book relating to the booking in and out of vehicles that were the subject of the case. The witness was not able to specifically recall the transactions relevant to the case but, by looking at the book, was able to confirm that the particular bookings occurred on the dates recorded. The Court held that the evidence was admissible:
It was said that the evidence was inadmissible because the prosecution were putting in the book and not relying on the evidence of the witness. It is precisely because circumstances of that sort constantly occur in human affairs that the law allows a person who has kept a record to look at it for the purpose of refreshing his memory. ‘Refreshing his memory’ is an inaccurate expression in some respects, but on most occasions it enables the witness to speak to something which his memory cannot carry from a record made at the time. Ever since the law of evidence has been what it is, it has been perfectly legitimate for a witness to say: ‘I have my own record; it was my duty to keep it; I did keep it accurately according to the best of my powers, and I can say from looking at my record that an event happened on a certain day, and on another occasion, either on that day or some other day, another event happened’. It was not necessary for the witness in the present case to say: ‘Now I see this, I remember that vehicle going out’. If she could do so because of some particular circumstance, that would be refreshing her memory in the strict sense of the word, but it was not necessary to go as far as that to make her evidence admissible.[25]
[24](1946) 31 Cr App R 146.
[25]Ibid 150.
The decision of the Full Court in Alexander and Taylor[26] affirmed the application of the common law principle in this State. In that case, the applicants were charged with robbing one McCartney. In the course of his evidence in chief, McCartney gave evidence as to an incident in which the two applicants set upon him, assaulted him, kicked him, and robbed him of a carton of beer. In cross-examination, it emerged that McCartney had little independent recollection of the event, other than that he had been involved in a fight. He was unable to recall any of the circumstances of the fight, or that the carton of beer had been removed by the applicants. His evidence in chief had been based on the statement that the police had taken from him, and which he had read before giving evidence.
[26][1975] VR 741.
On the appeal, it was submitted that the jury should have been instructed that the evidence given by McCartney was inadmissible because of the failure of the prosecution to produce his witness statement. The Full Court rejected that submission, stating:
It is of course well established by decided cases, including the authorities to which [counsel for the applicants] referred, that a witness may properly give evidence of events of which he no longer has any independent recollection, simply by reference to some written record which he made or adopted shortly after those events occurred and at a time when he did recall them, provided that the witness is prepared to swear to the accuracy of the record. Indeed unless this were allowed, it would often be impossible to prove the occurrence of past events, such as the details of a routine commercial transaction, except in cases falling within special statutory provisions such as s 55 of the Evidence Act1958. A case of this sort, where a witness has no independent recollection, is to be distinguished from the more common case where a witness uses a contemporaneous note or the like simply to revive or refresh an actual memory of the events of which he gives evidence.[27]
[27]Ibid 749 (Young CJ, Newton and Kaye JJ).
The Full Court then considered whether, in such a case, the document, containing the recorded memory ought to have been produced. The Court expressed the view that the document should have been provided to counsel for the accused but that there was no reason why it needed to be formally produced in open court.[28] The Court left open the question whether a party calling a witness who had no independent recollection had the right at common law to tender in evidence the record from which the witness spoke.[29] The Court noted that in Naidanovici[30] the New Zealand Court of Appeal had been divided on that question. We shall turn to that case shortly.
[28]Ibid 749–751.
[29]Ibid 751.
[30][1962] NZLR 334.
The decision in Alexander and Taylor was recently followed in R v Anders.[31] The trial in that case had taken place before the commencement of the Evidence Act. The accused was charged with stalking. The complainant had participated in a video audio recorded interview (‘VATE’ interview) in which he described the circumstances of the offence. At the conclusion of that interview, he made a statement that he had told the interviewer the truth in the VATE tape. In evidence, the complainant acknowledged that he no longer had any recollection of the events, but he adopted his own statement, made at the conclusion of the VATE tape, that he had told the interviewer the truth.
[31](2009) 20 VR 596.
On appeal it was submitted that this did not constitute a proper or effective adoption of the contents of the recording. The Court rejected the submission, stating:
This submission cannot be sustained. The law permits a witness who has no independent recollection of the events to which they are asked to depose to give evidence in accordance with, and in reliance upon, a statement or record made or adopted by him or her at a time sufficiently contemporaneous with the events when the witness could still recall those events. It is not necessary that the record revive the witness’s recollection.[32]
[32]Ibid 598 [6] (Redlich JA, with whom Vincent and Kellam JJA agreed)(citation omitted).
As indicated earlier, there are differences of judicial opinion as to whether, when a witness gives evidence as to a recorded memory, the document containing the recorded memory can or should be admitted into evidence. In Naidanovici, the Court of Appeal of New Zealand was divided on that point. Gresson P considered that the recorded evidence was a species of evidence given by a witness refreshing his or her memory and that, accordingly, the use of the record did not make the document evidence.[33] North and Cleary JJ were of the contrary view, holding that where a witness had no independent memory of the transaction, the document containing the recorded memory provided the best evidence of the matter and should be admitted.[34] In Keogh,[35] Blue J expressed a similar view, namely, that where a witness whose memory was not revived by looking at a previous account nevertheless verified the record, the record was admissible in evidence, and the witness’s oral testimony was the proof of the authenticity and accuracy of the record.[36]
[33][1962] NZLR 334, 336.
[34]Ibid 340.
[35][2015] SASC 180.
[36]Ibid [24].
In neither case was any doubt cast on the common law view that a witness’s evidence as to recorded memory forms part of that witness’s oral testimony. In Gillespie,[37] Sangster J appeared to go further, stating that in such a case the witness was telling the court something about the document, and it was the document that would tell the court ‘whatever it does say about the facts’.[38] To the extent that that case departed from the common law approach, it appears to stand, somewhat, on its own.[39]
[37](1973) 6 SASR 200.
[38]Ibid 202.
[39]Cf Normandale v Rankine (1972) 4 SASR 205, 207 (Walters J).
As a matter of logic, there is a distinction between, on the one hand, evidence reflecting the refreshed memory of a witness, and, on the other hand, the recitation by a witness of the witness’s recorded memory. A number of cases to which we have referred fall into the latter category. In practice, however, the line between the two categories of ‘remembered’ evidence can be quite indistinct or obscure, so that the distinction becomes quite illusory. In the common case in which a witness has refreshed his or her memory from a statement outside court, the witness’s evidence can be an inextricable mixture of both refreshed memory and recorded memory.
In many cases, it would be difficult, if not impossible, for the court, or the witness, to be able to identify those parts of the evidence given by the witness that fall into either particular category. Thus, in practice, the distinction between evidence that consists of refreshed memory, and evidence that is the product of recorded memory, can become quite artificial. The practice of the common law, of treating both species as part of the witness’s oral evidence, is less a fiction and more a pragmatic acknowledgement of reality, informed by the law’s understanding of the vagaries of the processes of human memory and recollection.
It is therefore not surprising that in a number of cases the courts have referred to the artificiality of distinguishing between refreshed memory and recorded memory. One hundred and fifty years ago, Hayes J in Lord Talbot de Malahide v Cusack[40] observed that the concept of refreshing the memory of a witness was particularly inaccurate. His Lordship stated:
In nine cases out of ten the witness’s memory is not at all refreshed; he looks at it again and again and he recollects nothing of the transaction; but seeing that it is in his own handwriting he gives credit to the truth and accuracy of his habits, and though his memory is a perfect blank he nevertheless undertakes to swear to the accuracy of his notes.[41]
[40](1864) 17 Ir CL 213.
[41]Ibid 220.
More recently, in Keogh,[42] Blue J of the Supreme Court of South Australia observed:
In real life, a witness who has been shown an earlier record may find it difficult to distinguish between having her or his memory revived (actual memory) and remembering making the record and reconstructing a memory of the events recorded in it (reconstructed memory). It may be that the witness has a combination of actual and reconstructed memory for different events recorded, different aspects of an event recorded or an indivisible amalgam of actual and reconstructed memory. Whether a witness can distinguish between actual and reconstructed memory will depend on the time between making the record and giving evidence, the importance to the witness of the subject matter, the quality of the witness’s memory and other factors.[43]
[42][2015] SASC 180.
[43]Ibid [27].
That, then, is the background, or landscape, in which s 32 was included in the Evidence Act. It is acknowledged that the Act did not simply adopt or incorporate common law principles and doctrines. In a number of significant respects, the Act abrogated, altered, adjusted or supplemented existing common law approaches to the law of evidence. Nevertheless, it is relevant that s 32 was included in the Evidence Act in the context of the common law’s longstanding treatment of a witness’s testimony as to recorded memory as part of that witness’s oral evidence, and not as an exception to the hearsay rule.
The position under the Evidence Act
As we have said, the question of admissibility turns on whether the exception in s 63(2)(a) applied. Accordingly, the question for determination is whether, in reading out that part of his report which recorded a representation made by a claimant, the medical practitioner was ‘giving evidence of the representation’, within the meaning of that sub-paragraph. It was not in doubt that the practitioner was, in each instance, ‘a person who heard the representation being made’.
It was common ground on the appeal that the medical practitioner would properly have been viewed as ‘giving evidence of the representation’ if, in the witness box:
(t) the practitioner was able to recall it unaided; or
(u) the practitioner’s recollection of the representation was revived or refreshed by reading the relevant report.
The argument for CSR, however, was that if the practitioner had no actual recollection, and reading the report did not revive any recollection, the practitioner was not ‘giving evidence’ when he read out the report. This was not oral evidence, it was said, but documentary evidence.
There is nothing in the definition of hearsay evidence in s 59 of the Evidence Act, or in s 63, that would indicate an intention to depart from the long-standing common law position that evidence reciting recorded memory is not hearsay evidence. Nor is there any indication in s 32 that the legislature intended such a departure, so as to introduce a distinction between refreshed and recorded memory. To the contrary, a consideration of the provision is, we consider, decisive that the common law approach has been retained.
As counsel for CSR emphasised, s 32 appears in div 3 of the Evidence Act, which is entitled ‘General rules about giving evidence’. This section contains the ‘general rules’ about when and how a witness may ‘in the course of giving evidence’[44] use a document to try to revive his or her memory ‘about a fact’.
[44]Emphasis added.
There is nothing in s 32 that distinguishes between, on the one hand, giving evidence from refreshed memory, and, on the other hand, giving evidence of recorded memory. Subsection (1) precludes a witness, in the course of giving evidence, from using a document ‘to try to revive his or her memory’ about a fact or opinion unless the court gives leave. Subsection (2) provides the matters that the court is to take into account in determining whether to give such leave. None of those factors preclude the giving of leave in a case in which the witness has no present recollection, and thus, if given leave, would give evidence based on recorded recollection. Subsection (2) is the gateway to the entitlement of a witness, under sub-s (3), with further leave of the court, to read aloud the document that is used to try to revive the witness’s memory.
Section 32(3) is of critical importance, in our view. It provides that where, pursuant to leave granted, the witness has ‘used a document to try to revive his or her memory about a fact’[45] the witness may (again with leave)
read aloud, as part of his or her evidence, so much of the document as relates to that fact.[46]
[45]Emphasis added.
[46]Emphasis added.
There is nothing to suggest that this provision is capable of applying only when the attempt to revive memory has been successful.[47] On the contrary, on the plain meaning of the provision all that is required is that the witness should have used the document ‘to try to revive his or her memory’. This is unsurprising, in our view, as it would be a task of great difficulty for a judge to decide, in any given case, whether what had occurred was an actual ‘revival’ of an earlier memory or the short-term creation of a fresh memory of the content of the document.
[47]See DPP v Curran [Ruling No 2] [2011] VSC 280; Spalding v Radio Canberra Pty Ltd (2009) 224 FLR 440.
Counsel for CSR accepted, in answer to questions from the Court, that s 32(3) could properly apply in a case where the witness’s attempt to revive his or her memory had failed and where the witness had no memory at all of the fact in question. Their argument remained, however, that the availability of this procedure could not make the evidence of the medical practitioners admissible in proof of the recorded facts. But, as we have sought to explain, s 32 does not go to admissibility, which is (relevantly) governed by s 63(2). Rather, it authorises a method for ‘giving evidence’ of a recorded fact.
The scheme contained in s 32 is broadly similar to the circumstances in which, at common law, a witness is permitted to give evidence by referring to, or reading, a statement in order to supplement or refresh that witness’s memory. There is no indication in s 32 of an intention by the legislature to confine or restrict the previous practice of permitting a witness to use a statement for the purposes of giving evidence as to recorded memory, as distinct from refreshed memory. It is understandable that the legislature did not seek to incorporate such a dichotomy into s 32, in light of the artificiality of the distinction to which we have just referred.
Relevantly, the section of the original report of the Australian Law Reform Commission dealing with this topic militates against the importation into s 32 of the dichotomy (between refreshed and recorded memory) contended for by the applicants. In paragraph 615 of its report, entitled ‘Reviving Memory in Court’, the Commission stated:
Proposals are advanced to deal with reviving memory in court by the reading of documents. These proposals are developed from existing law but introduce a greater degree of flexibility.[48]
[48]Law Reform Commission, Evidence (Interim), Report No 26 (1985) 340 [615].
CSR’s contention — that s 32 only permits the use of a previous document to refresh memory, and not to introduce recorded memory — is not only contrary to the evident intention of the section but, if adopted, would produce anomalies in practice that could not have been intended by the legislature. As counsel for James Hardie pointed out, that construction of s 32 would produce the incongruous situation that, if a witness was able to commit to memory the contents of a statement made some time earlier (as the witness McCartney did in Alexander and Taylor), the witness would be able to give such evidence, whereas if another witness, not blessed with such an acute memory, could not do so, that witness would be precluded from referring to and using such a statement in the course of giving evidence in court.
It follows from what we have said that, when the medical practitioner (having tried and failed to revive his memory by reading the medical report) reads aloud the relevant part of the report containing the claimant’s representations, he is ‘giving evidence of’ those representations, just as he would be if he did so from his own recollection. The manifest purpose of s 32(3) is to assimilate those two things, just as the common law did.
Accordingly, the evidence given by each medical practitioner of the histories was not hearsay evidence of the histories. When the practitioner related to the Court the facts contained in the history given by the claimant, that constituted first-hand hearsay (and not more remote hearsay) as to those facts. The evidence was therefore admissible in each case, pursuant to s 63(2)(a) of the Evidence Act, to prove the facts stated to the medical practitioner by the claimant. For those reasons, ground 1 must be rejected.
Discretion under s 136
Ground 2 contends that the judge should have concluded that the use of the medical reports to prove the work histories of the claimants might be unfairly prejudicial to the applicants, or misleading. He should therefore have exercised the discretion under s 136 of the Evidence Act to limit their use to non-hearsay purposes.
The judge did not specifically address s 136. Rather, in giving leave to the medical practitioners to ‘give evidence’ of the contents of their reports under s 32(3), the judge addressed the matters prescribed in s 192(2) of the Evidence Act.[49] Ultimately, the appeal submissions were directed to that aspect of the judge’s reasons.
[49]Reasons [182].
The judge noted that the defendants had argued that it would be unfair to permit the evidence to be given, because they would not be able to test by cross-examination the accuracy of the accounts given by the claimants or to test the veracity and accuracy of the record taken by Professor Fox, since he had no memory of the interviews. None of Professor Fox’s original handwritten notes were available.
His Honour said that he was persuaded by the importance of the evidence to admit it. The circumstances of the interviews with Professor Fox, and the methods that he had adopted in recording what he had been told, provided a ‘relatively high degree of confidence’ in the accuracy of the material. The judge considered that the inability of the applicants to cross-examine the original claimants or Professor Fox could be taken into account in determining the weight to be attributed to the evidence.[50]
[50]Ibid [188]–[189].
The appeal submissions essentially rehearsed the same propositions as were advanced before the judge. They relied on the fact that Professor Fox had no independent recollection of his consultations with the claimants; and the fact that Professor Fox gave evidence of his practice of obtaining the work history from ‘the collective memory’ of the family members present. (We interpolate that that description of Professor Fox’s evidence is not entirely accurate. Rather, as earlier indicated, Professor Fox stated that he gained some assistance, on some occasions, from the wife of a claimant.)
The decision by the judge to give leave under s 192 of the Evidence Act was essentially a discretionary decision. The applicants did not contend that the judge took into account an irrelevant circumstance, or that his Honour failed to take into account a relevant matter. Nor are we persuaded that the decision was not reasonably open to the judge.[51] Accordingly, the applicants have failed to identify any appealable error.
[51]National Builders Group IP Holdings v ACN 092 675 165 Pty Ltd (in liq) [2015] VSCA 260 [45]–[46].
Importantly, the factors that might be taken into account under s 136 were, to all intents and purposes, the same as those taken into account by the judge in granting leave under s 192. It follows that, notwithstanding that the judge did not address s 136, no error has been demonstrated.
The inferences drawn from the circumstantial evidence
Grounds 3, 4 and 6–10 concern the question of whether the circumstantial evidence adduced at trial was sufficient to support the inferences drawn by the judge that each of the claimants (except Mr De Vries) was exposed to asbestos dust emanating from Hardie-BI product. Grounds 3 and 4 deal with the general findings, as follows:
3.The learned trial judge erred in drawing inferences that the sub-group claimants were exposed to asbestos from Hardie-BI products where:
(a) there was no direct evidence of such exposure;[52]
(b) there was insufficient circumstantial evidence from which such inferences could be drawn;[53]
(c) there was a significant body of evidence of possible exposure to asbestos from non-Hardie-BI products;[54] and
(d) there was a finding that the weight attributed to the asbestos exposure histories in the medical reports could be limited where those medical reports might be critical in a particular determination.[55]
4.In the alternative to ground 3, the learned trial judge erred in giving undue weight to the evidence of the sub-group claimants’ possible exposure to asbestos from Hardie-BI products and insufficient weight to the evidence of their possible exposure to asbestos from non-Hardie-BI products.[56]
[52]Reasons [15]–[16].
[53]Ibid [15].
[54]Ibid [145], [494], [549]–[554], [588], [593], [599], [601], [636], [649], [720]–[721], [750], [753]–[754], [762]–[764].
[55]Ibid [188]–[189].
[56]Ibid [601], [617]–[618], [649], [733], [746], [764], [790].
Grounds 6–10 deal with the exposure findings made by the judge in respect of individual claimants: Mr Johnstone (ground 6), Mr Benjamin (ground 7), Mr Alexander (ground 8), Mr Kracht (ground 9) and Mr McGuire (ground 10). In ground 6, CSR also makes complaint about the judge’s conclusion that Mr Johnstone’s exposure to Hardie-BI product was a cause of his lung cancer.
General findings
As noted earlier, few of the 204 claimants to which this proceeding relates are now alive, and none were called to give evidence at trial. Their damages claims were never run at trial, but were settled after being issued. As the judge observed, the evidence of the actual work of any individual claimant was relatively scant and the evidence concerning the presence and location of asbestos lagging, its type and prominence was fragmented.[57] At trial, in order to attempt to meet the difficulty created by the lack of direct evidence of exposure to Hardie-BI product, James Hardie sought to persuade the Court to infer from circumstantial evidence that a particular claimant was probably exposed to Hardie-BI asbestos fibre at a relevant SECV site.
[57]Ibid [15].
The judge described James Hardie’s approach as being
to marry together a range of contemporaneous business records, some contemporaneous documents produced for the relevant court proceeding, and some other witness evidence
James Hardie had invited his Honour to draw the necessary inferences from that material. The judge represented that methodology in the form of three equations, about which CSR makes no complaint in this Court.
Those equations were as follows:
(1)SECV power station construction and maintenance schedules + SECV (and contractor) purchase orders + Hardie-BI supply records = probability of presence of Hardie-BI product at power station.
(2)Presence of Hardie-BI product at power station + period of worker’s employment at power station + nature of worker’s trade + typical duties of that trade = probability of some exposure to Hardie-BI product.
(3)Probability of some exposure to Hardie-BI product + nature and timing of particular illness + expert pathology opinion as to probable causal connection = probability that exposure caused illness.[58]
[58]Ibid [17]–[18].
The judge discussed the evidence that implicated asbestos fibres in the causation of various diseases. The judge identified the first category of conditions as malignant disease, being mesothelioma, carcinoma of the lung and other malignant neoplasms. He identified the second category as a group of ‘benign’ disorders such as asbestosis, pleural plaques and some other pleural conditions. The judge then discussed the use of the terms ‘indivisible’ and ‘divisible’ to differentiate the two categories of disorders. Mesothelioma and lung cancer were each said to be examples of indivisible diseases, whereas asbestosis and pleural plaques were said to be examples of divisible diseases.
As the judge noted, for present purposes the importance of the distinction between the two categories of disease lies in the attribution of any particular episode of exposure to asbestos (above mere background exposure) as a cause of the particular condition.[59] For indivisible diseases, the evidence was that all exposure to asbestos was causally relevant, but for divisible disorders the Court needed to decide the proportionate role that a relevant exposure played in the cause of the relevant condition.[60] For indivisible disorders, James Hardie contended that it was unnecessary for it to show more than that the relevant claimant was exposed to Hardie-BI fibre of at least a sufficient amount to have made a necessary, incremental contribution to the development of the illness.
[59]Ibid [48].
[60]Ibid [50]–[55].
The judge said that, as there was no longer any means of discovering by direct evidence whether a particular claimant was exposed to Hardie-BI asbestos, it was necessary to look at a number of factors to determine whether an inference of relevant exposure could be drawn.[61] The judge described the relevant factors as follows:
[61]Ibid [121].
a. trade
Some trades were more likely to bring a worker into contact with asbestos than others. Obviously, a ‘lagger’ — a worker whose role it was to install or remove insulation around pipes and in boilers — was most likely to be exposed to airborne asbestos fibres. Depending on the type of insulation product being handled, the process of either installing or removing insulation could liberate a higher or lower amount of fibre. If, for example, KLite blocks were being installed on pipes with bends and angles or obstacles to negotiate, the calcium silicate blocks had to be cut at an angle for fitting purposes. Cutting was done with handsaws or mechanical saws. That process created a lot of dust which contained a percentage of amosite asbestos fibre.
A different trade — say, an instrument maker or a trade assistant to an instrument maker — may only have intermittently encountered an atmosphere with asbestos fibre, if at all, depending on whether asbestos insulation needed to be removed in order for an instrument to be installed or removed. It would also depend on whether that instrument maker was present when or soon after the asbestos insulation was disturbed.
Similarly, a cleaner or a rigger might be heavily exposed to asbestos fibre if working in an environment where insulation (say blocks or sections) had been cut leaving debris that could still be disturbed — even, in some cases, drifting down onto workers below. Or they may only be intermittently or rarely exposed to asbestos fibre if not working in and around insulation installation or removal areas or in periods of time when asbestos insulation product was not being disturbed.
But, the incidence of exposure for many of the trades working amongst those who worked more directly with asbestos fibre would be difficult to predict. It could readily be said that they might on occasions have been exposed to asbestos fibre: not that they must have been or, at least, not regularly.
The most comprehensive resource for information about a particular trade, and the nature and likely degree of exposure to airborne asbestos fibre associated with that trade, was supplied through Mr Drewett’s OEAs for each claimant. As described in further detail below, Mr Drewett’s statement, incorporating his OEAs, was permitted to be tendered subject to relatively few objections.
b. direct or indirect exposure
The degree of likelihood that a person’s asbestos disease can be attributed to Hardie-BI asbestos, as distinct from other manufacturer’s product, may be influenced by whether inferred exposure to Hardie-BI product was direct or indirect.
As previously explained, direct exposure is the inhalation of asbestos fibre in the industrial environment where the asbestos insulation is situated. Indirect exposure occurs through a worker, who him or herself being directly exposed, carries the asbestos fibre on clothing, boots etc into the home thus causing household members to come into contact with the dust which they inhale.
Common sense would suggest that the quantity fibre to which a household member may be indirectly exposed will generally be less than that of the directly exposed worker. But the extent of a household member’s potential exposure will itself be impacted by the number of workers in the household who worked at an SECV facility; the trades that those workers worked in; the places each different worker worked in; the duration of time over which the workers carried the dust into the home; the particular tasks the household member had with the clothing; and the extent to which the person’s asbestos condition can be sensibly explained by exposure to any other source, and so on.
c. period
Where the supply and construction records for the particular facility indicated the probable installation of Hardie-BI product from a specific point in time, it is obviously relevant to know whether the claimant was present at the facility thereafter, or only before. It is also relevant to know the duration of a claimant’s work at a particular facility at which Hardie-BI fibre can be inferred to have been installed. Clearly, the longer a claimant worked at a facility, the higher the degree of probability that he or she encountered airborne asbestos fibre liberated from Hardie-BI product.
But it is also highly relevant to know whether the period of the worker’s presence at a facility was during a construction phase or only a maintenance phase. It stands to reason that the disturbance of asbestos fibre into the atmosphere was likely to have occurred in greater volume when insulation was being installed in bulk, rather than removed and replaced on a piece-meal basis.
d. type of asbestos insulation product
It may be of relevance to know whether the claimant worked with, or was likely to have worked with, different kinds of asbestos insulation product. Products that were cut; that were sprayed on as dry fibre; or which required mixing from dry powder form with water to make cement — were each more likely to cause exposure to airborne fibre than, say, uncut sheets or boards. Likewise, asbestos insulation made from an amphibole fibre had a greater causal potency than of the non-amphibole type.
e. exposure to asbestos fibre from other manufacturers
In assessing the probability that a particular claimant’s illness was caused by exposure to Hardie-BI product, it would seem logical to know the worker’s exposure over time to asbestos fibre from all sources. Logically, it would seem to be more difficult to infer the necessary causal role of Hardie-BI fibre in respect of a worker exposed to asbestos fibre from many different sources over a long period of time than in respect of a worker who was only ever exposed to fibre from Hardie-BI product. But, that statement itself is somewhat controversial in relation to ‘indivisible’ injuries.
f. nature of illness
In terms of the attribution of causal significance to Hardie-BI product in respect of a given worker’s illness, the nature of that illness may be of importance. Bearing in mind Professor Henderson’s opinion that, with the malignant forms of illness, all exposure (above background) is causative, exposure to asbestos of other origin is not necessarily so significant. However, for non-malignant forms of illness the same principle does not apply so that it is at least relevant in respect of those illnesses to evaluate the relative degrees of exposure to all product to form a view of causation (ie liability).
But even if liability can be assumed, the question of the degree of responsibility of the Hardie-BI partners for a worker’s damage consequent upon an illness, vis-à-vis other contributors, may require an assessment of the relative amounts of exposure. Whether that is so for both divisible and indivisible illnesses remains a live issue.
g. interval between exposure and onset of illness
A necessary ingredient for finding a causal relationship between an identified (or inferred) exposure to Hardie-BI fibre and a worker’s illness, is the existence of a minimum gap in time before onset of the illness. An onset that occurs too close to the posited exposure event will not be attributed to that event because of the known latency period between exposure and the manifestation of illness in relation to different illnesses. Professor Henderson has examined each claimant against that criterion.[62]
[62]Ibid [123]–[137].
Next, the judge described the evidence relevant to the proof of exposure. This evidence consisted of OEAs performed by Mr Drewett,[63] answers to interrogatories[64] and doctors’ reports containing claimants’ histories of exposure.[65]
[63]Ibid [142]–[150].
[64]Ibid [151].
[65]Ibid [152].
The judge then recorded concessions made by CSR in the pleadings and in final submissions. In relation to each claimant, CSR conceded that:
(v) he had suffered the injury or condition alleged;
(w) except for Mr Johnstone, his injury or condition was caused by exposure to asbestos fibre;
(x) if it was proved that the asbestos exposure that caused his condition was exposure to fibres from Hardie-BI partnership product at one of the seven SECV locations, then James Hardie and CSR each negligently caused the injury or condition; and
(y) if, and to the extent that, James Hardie was able to establish that his injury or condition was caused by exposure to asbestos fibre from partnership product at one of the seven SECV sites, James Hardie and CSR were each liable in respect of the damage suffered by the claimant as a result of that exposure within the meaning of s 24(1)(c) of the Wrongs Act.[66]
[66]Ibid [218].
Next, the judge noted CSR’s positions at trial in respect of four issues relevant to exposure, as follows:
(z) first, CSR admitted that during the partnership period, work was undertaken at each SECV facility involving the installation, maintenance and removal of thermal insulation consisting of asbestos blocks, pipe sections, insulating cement (or composition) and millboard (collectively defined as ‘ATI’), but also alleged that the thermal insulation products included other asbestos products such as cord, rope, jointing and limpet that were not supplied by the partnership;
Once a claim was settled by the SECV attracting the operation of the GSAs, James Hardie ought to have acted swiftly to make its payment and join the claim to the proceeding. In this particular case the cumulative delays of nearly six years between the SECV settlement and the JHC payment and then the JHC payment to the commencement of this proceeding has added an unacceptable and unreasonable additional period of time before this matter has come to trial. All of the relevant time frames in this case are longer than those relating to Mr Alexander, including those over which I presume James Hardie had a degree of control. The length of the delays of themselves call for some explanation. But, without explanation, nearly six years elapsed from settlement and nearly 3½ years elapsed from contribution before the claim was brought. During that time it may reasonably be inferred that some evidence which might have been gathered to assist CSR in defending the claim would have either been lost or made less readily accessible.
There is an air of artificiality in James Hardie’s insistence that CSR should identify with greater specificity the evidence that was lost, or the precise way in which it was prejudiced, or the actual period of ‘excessive’ delay. These requirements call for CSR to identify the very things it could not know by reason of the position in which it was placed by the long latency period of the disease and the choices James Hardie made in the arrangement under which it settled claims.[184]
[183]Ibid [700].
[184]Ibid [696]–[699].
James Hardie submitted that this reasoning was not sufficient to make out a defence of laches. While prejudice by the effluxion of time may be presumed, the circumstances of Mr Reid’s cause of action were very old. It was submitted that nothing occurred in the relevant three and a half year period that was sufficient to amount to laches. Moreover, it was submitted, the use by the judge of expressions such as ‘apt to prejudice’[185] and ‘likely caused some unfair disadvantage’[186] set the bar too low when considering what actual detriment was likely to have been suffered as a result of a delay between November 2004 and April 2008. This was said to be particularly so in circumstances where the relevant events involving Mr Reid’s claim went back to 1964.
[185]Ibid [696].
[186]Ibid [700].
In Orr, the majority discussed the question of prejudice in relation to the defence of laches as follows:
The substance of the respondents’ case in relation to laches was that prejudice in defending the appellant’s claim by reason that evidence which might earlier have been available was lost to them. Prejudice is a consideration properly to be taken into account in relation to laches, although the respondents were not able to point to any authority where such a consideration had defeated the claim of a beneficiary to specific property the subject of an express trust. However, where entitlement depends on factual matters which are fairly open to dispute we see no reason why prejudice occasioned by the loss of evidence as a result of delay on the part of the claimant might not be raised in answer to such a claim.
The question of prejudice resulting from unavailability of evidence necessarily involves some degree of speculation, but it is not a question of pure speculation. The issue is not whether evidence may have been lost but whether evidence which may have cast a different complexion on the matter has been lost. Thus in Crago v McIntyre a defence of laches was successful because a different conclusion may have been reached ‘if all of the witnesses, including the doctors, who could have given firsthand accounts of the plaintiff’s behaviour, and of other relevant circumstances, had been available to be called as witnesses’.
In the present case the witnesses whose evidence was said to have been lost were the appellant’s parents-in-law, Dr Stone and Mrs Nickerson. The loss of the evidence of the appellant’s parents-in-law occurred prior to December 1977, the time at which the respondents assert that the appellant knew that his interest was impugned and whose delay thereafter is said to constitute laches. The loss of this evidence is therefore not a matter to be taken into account.[187]
[187](1989) 167 CLR 316, 330–1 (Wilson, Toohey and Gaudron JJ) (emphasis added) (citations omitted).
CSR did not identify any evidence which had been lost between the time at which James Hardie’s cause of action accrued and the time at which James Hardie joined the relevant claim to the proceeding, and which might have cast a different complexion on matters. Moreover, notwithstanding the judge’s finding that there had been a delay by James Hardie in informing CSR of the existence of the Reid claim,[188] there was no evidence in fact as to when CSR was first informed of the claim.[189]
[188]Reasons [696].
[189]In making that statement, we have not overlooked (although we have not relied upon) a footnote in James Hardie’s amended written case on the cross-appeal in which it is stated:
In fact, evidence of this was led in the later application concerning interest, which demonstrated that the claims were notified to CSR’s lawyers soon after payment was made, albeit that some time then passed before they were formally incorporated into the contribution proceedings. That evidence was not before his Honour but it illustrates the limitations of the case put to him as a basis for finding prejudice.
With respect, we are unable to conclude that the defence of laches was made out with respect to Mr Reid’s claim. It seems to us that this was a case more akin to that described in Archbold[190] as one of mere delay. It is largely a matter of speculation whether there was any detriment (or sufficient detriment) suffered by CSR as a result of the lapse of time between the accrual of James Hardie’s cause of action and the joinder of its claim for contribution in the present proceeding. Certainly, the judge did not identify any specific fact or circumstance that occurred in the relevant period (November 2004 to April 2008) that resulted in prejudice to CSR. Cross-appeal ground 2 must therefore succeed with respect to Mr Reid’s claim. We turn now to consider cross-appeal ground 2 with respect to Mr Preston’s claim.
[190](1861) 9 HL Cas 360.
Cross-appeal ground 2: Mr Preston
James Hardie paid its settlement under the GSA in respect of Mr Preston on 24 February 1998. It joined its equitable claim for contribution to this proceeding against CSR on 6 May 2003. From the date when the cause of action first accrued to James Hardie, a period of five and a quarter years elapsed before it joined its claim for contribution in respect of Mr Preston.
As with the Reid claim, the judge set out the background facts which he considered provided context for the laches issue.[191] Adopting a very similar reasoning process, the judge came to the conclusion that the delay caused by the time taken to join the claim to the proceeding ‘has likely caused some unfair disadvantage to CSR and corresponding advantage to James Hardie’.[192]
[191]Reasons [832].
[192]Ibid [839]. See also Reasons [835]–[838]. But cf [700] and [696]–[699] in relation to the Reid claim.
For the same reasons as we have given in respect of the Reid claim, we have respectfully concluded that the judge erred in holding that the defence of laches was made out in relation to the Preston claim. As with the Reid claim, there was no evidence about when CSR was first informed of the existence of the Preston claim.[193] And, as with the Reid claim, CSR did not identify any potentially relevant evidence which had been lost between the time when James Hardie’s cause of action accrued and the time when James Hardie joined the relevant claim to the proceeding.[194]
[193]Cf Reasons [835].
[194]Cf Orr (1989) 167 CLR 316, 330.
There are no additional or different facts that occurred after James Hardie’s cause of action first accrued which might differentiate the Preston claim from the Reid claim, or indeed from the claims in respect of other claimants. His Honour’s conclusions about laches appear to have been chiefly based on the fact that longer periods of time elapsed in relation to Mr Reid’s claim and Mr Preston’s claim than in relation to those claims where the judge held that the defence of laches was not made out. Ground 2 must also be upheld in relation to the Preston claim.
The Alexander, Reid, Maguire and Preston claims
In respect of James Hardie’s claims under the Wrongs Act, we concluded earlier that the pre-31 December 1971 claims in respect of Mr Alexander, Mr Reid, Mr McGuire and Mr Preston were not barred but that the post-31 December 1971 claims were barred. We have now concluded that James Hardie has available to it alternative claims for equitable contribution in respect of Mr Alexander, Mr Reid, Mr McGuire and Mr Preston, and that CSR has failed to establish the defence of laches in respect of any of those claims. As mentioned earlier, James Hardie has said in relation to the claims for equitable contribution in the Alexander, Reid, McGuire and Preston matters that it will elect to take judgment against CSR alone (and not Bradford). As a result, it is no longer necessary for us to consider the consequences of the post-31 December 1971 Wrongs Act claims being statute-barred.
That said, we propose to state our conclusions in respect of the Wrongs Act claims relating to the four claimants, Mr Alexander, Mr Reid, Mr McGuire and Mr Preston. We will do so because the cases involving the remaining 196 claimants may include instances where the pre-31 December 1971 Wrongs Act claim is not barred but the post-31 December 1971 Wrongs Act claim is barred and a defence of laches is made out in respect of the alternative claim for equitable contribution. What we say in this section of our judgment is intended to give the parties guidance in respect of any such claim.
On the assumption that the pre-31 December 1971 Wrongs Act claim was not statute-barred and the post-31 December 1971 Wrongs Act claim was statute-barred, the parties submitted that the appropriate amount to be paid pursuant to the Wrongs Act in respect of the Alexander, Reid, McGuire and Preston claims was as follows:
Claimant
James Hardie’s submission
CSR’s submission
Alexander
$10,000
$1,610 to $2,300
Reid
$38,500
$18,889.40 to $23,611.75
McGuire
$18,152.01
$12,346.25 to $14,110
Preston
$14,190
$8,891.26 to $11,114.08
The figures submitted by CSR were expressed to be ‘exclusive of defence costs’. This was in accordance with the position taken by James Hardie at trial that it made no claim in respect of defence costs in relation to its Wrongs Act claims.[195] On the other hand, the figures submitted by James Hardie and set out in the table above appear to contain defence costs. Having regard to the position James Hardie took at trial (correctly, in our view), in any calculation under the Wrongs Act the relevant defence costs need to be disregarded.
[195]Reasons [280].
In making its submissions as to the appropriate figures under the Wrongs Act, CSR re-agitated some of its submissions on evidential lacunae and the other difficulties it submitted were associated with any finding in favour of James Hardie in this proceeding. Those issues have now been resolved against CSR and the appropriate figures for contribution under the Wrongs Act must be calculated accordingly.
James Hardie submitted that a ‘time on risk’ approach to the pre-31 December 1971 and post-31 December 1971 issue was appropriate, having regard to the state of the evidence in this proceeding. That is, James Hardie sought to apportion the figure for contribution arrived at in relation to the relevant equitable contribution claim and then to apportion it by reference to the number of relevant days prior to 31 December 1971 and after 31 December 1971. Subject to what we say in the following paragraphs, we agree generally with this approach. While this approach might be described as broad brush, the evidence as a whole does not admit of a more precise analysis. Indeed, CSR was content to submit an alternative approach which it described as ‘rough and ready’.
James Hardie submitted that, in respect of some claimants, its entitlement to contribution on a time on risk calculation should be increased where the post-31 December 1971 exposure continued past May 1974 (being the agreed date upon which the partnership ceased manufacturing Hardie-BI product). The basis for this submission was that any exposure post-May 1974 would be ‘confined to in situ product only’. While that might be so, we do not accept that, on the evidence, that is an appropriate basis for any increase in the amount that would otherwise be awarded by performing a calculation of the kind to which we have referred.
James Hardie’s submission with respect to the Alexander claim was premised upon an acceptance of its submission that, taking account of the error identified in CSR’s ground 8, contribution in respect of Alexander should nevertheless amount to $20,000. We have already determined that that figure should be $12,500. Accordingly, any claim for contribution under the Wrongs Act must be calculated in the way we have suggested on a figure of $12,500, less any amount in that figure for defence costs, not on a starting figure of $20,000.
The judge determined that the claims in respect of Mr Reid and Mr Preston were statute-barred and that defences of laches were established. Notwithstanding those conclusions, the judge calculated amounts that would be payable in respect of Mr Reid and Mr Preston had a claim for equitable contribution been made out. The amount calculated by the judge in respect of Mr Reid was $77,000. In respect of Mr Preston, it was $33,000. No party submitted that there was any error by the judge in these calculations.
Applying the time on risk approach, set out above in respect of the Reid, McGuire and Preston claims, produces figures of $36,575, $18,152.01 and $14,190 respectively. Again, we reject the increase sought by James Hardie (only in the case of Mr Reid this time) on the basis that post-31 December 1971 exposure continued past May 1974. Equally, any part of those figures that contains an allowance for defence costs must be removed. As the amounts of defence costs are known, we assume that their removal from these figures ($36,575, $18,152.01 and $14,190) would be a matter of simple arithmetic to be performed by the parties, if necessary.
Conclusions in respect of the grounds of appeal and cross-appeal
Before stating our conclusions in respect of each contribution claim, it is convenient now to summarise our conclusions in respect of CSR’s grounds of appeal and James Hardie’s grounds of cross-appeal.
With respect to CSR’s grounds of appeal and James Hardie’s grounds of cross-appeal, we have reached the following conclusions:
(tt) the judge did not err in admitting the asbestos exposure histories contained in medical reports relating to individual claimants. Accordingly, CSR’s grounds 1 and 2 fail;
(uu) the judge did not err in drawing the inferences he drew relating to the claimants whom he found were exposed to Hardie-BI asbestos product. Nor did he err in concluding that those exposures were a cause of the injuries suffered by those claimants. Accordingly, CSR’s grounds 3 and 4 fail;
(vv) the judge did not err in concluding that the claimants Mr Johnstone, Mr Benjamin, Mr Alexander, Mr Kracht, Mr McGuire and Mr Preston were exposed to Hardie-BI product and that that exposure was a cause of their injuries. Accordingly, CSR’s grounds 6 to 10 fail — except ground 8 (relating to Alexander) to a limited extent. In respect of the Alexander claim, the judge erred in finding that there were different causal potencies for different types of asbestos in respect of asbestosis. The correction of that error means that the amount of contribution awarded by the judge in respect of Mr Alexander ($35,000) should be reduced to $12,500;
(ww) the judge did not err when he concluded that the equitable right of contribution was not subsumed within or overtaken by the statutory remedy provided by s 24 of the Wrongs Act. Accordingly, CSR’s ground 5 fails. However the judge erred when he concluded that claims for equitable contribution were only available where no statutory claim for contribution was available. Accordingly, James Hardie’s cross-appeal ground 3 succeeds and James Hardie has a claim for equitable contribution in respect of every claimant who was relevantly exposed to Hardie-BI product and who suffered injury as a result;
(xx) the judge did not err in his conclusion that the defence of laches is available in claims for equitable contribution notwithstanding the existence of a statutory limitation period applied by analogy. Accordingly, James Hardie’s cross-appeal ground 1 fails; and
(yy) the judge erred in concluding that the equitable contribution claims in respect of Mr Reid and Mr Preston were defeated by laches. In those cases, the defence of laches was not made out. Accordingly, James Hardie’s cross-appeal ground 2 succeeds.
As a result of these conclusions, James Hardie is entitled to recover equitable contribution in respect of Mr Alexander, Mr Benjamin, Mr Reid, Mr Johnstone, Mr Kracht, Mr McGuire and Mr Preston. In respect of Mr Alexander, the amount assessed will be reduced from the judge’s figure to $12,500. In respect of the other claimants, the amount of contribution is the amount assessed by the judge.
Having regard to the conclusions just set out, our conclusions with respect to James Hardie’s cross-appeal grounds 4 and 5 cannot affect the ultimate outcome of this appeal. Nevertheless, we summarise our conclusions with respect to those grounds as follows:
(zz) the judge erred in his construction of the 1958 version of s 24(4) of the Wrongs Act. As a result, James Hardie’s cross-appeal ground 4 is made out and the judge’s conclusions that each of the pre-31 December 1971 claims was statute-barred should be set aside and replaced with a conclusion that those claims were not statute-barred; and
(aaa) the judge did not err in his construction of the 1972 version of s 24(4) of the Wrongs Act. Accordingly, James Hardie’s cross-appeal ground 5 fails.
Conclusions in respect of each contribution claim
The judge ordered CSR to pay contribution in respect of five claimants (Mr Alexander, Mr Benjamin, Mr Johnstone, Mr Kracht and Mr McGuire). In addition to the general complaints made in CSR’s grounds 3 and 4, those claimants were each the subject of a separate ground of appeal directed to the judge’s conclusions about exposure and causation in relation to them (grounds 6 to 10). Obviously, there were no separate grounds of appeal in relation to the claimants Mr Reid and Mr Preston, in respect of whom no contribution was ordered.
More importantly, there was no notice of contention by CSR alleging that, in the event that one or more of James Hardie’s grounds of cross-appeal in relation to Mr Reid or Mr Preston succeeded, CSR would seek to support the conclusion that no contribution was payable in respect of those claims on the ground that the judge should have found against them on the issues of exposure and/or causation. Nevertheless, we have examined the judge’s findings on exposure and causation in relation to Mr Reid and Mr Preston by reference to the arguments advanced by CSR in support of its grounds 3 and 4. Having conducted that analysis, we have concluded, for the reasons already given, that the judge did not err in his findings with respect to exposure and causation in relation to the Reid and Preston claims.
While the judge determined that no amount was payable by CSR in respect of the Reid and Preston claims, because the claims under the Wrongs Act were statute-barred, and the defence of laches was made out in relation to the equitable contribution claims, he went on to assess the amount of contribution that would be payable if he were wrong. No party suggested in this Court that the judge’s assessments were erroneous or that this Court should not award the amounts found by the judge if we concluded that a relevant claim was made out. In light of this and the conclusion we have reached with respect to the Reid and Preston claims, we propose to order contribution in relation to those claims in the amounts calculated by the judge: $77,000 in respect of Mr Reid;[196] and $33,000 in respect of Mr Preston.[197]
[196]Reasons [704].
[197]Ibid [843].
It is now possible to state our conclusions in relation to each claim for contribution. The table below sets out our conclusions:
Claimant & illness Hardie-BI exposure proven? Wrongs Act claim Equitable claim Amount
(exclusive of interest)Pre-31 Dec 1971 Post 31 Dec 1971 Limitation by analogy Laches defence Alexander
AsbestosisYes Not barred Barred Not barred No $12,500 De Vries
MesotheliomaNo - - - - Nil
Benjamin
MesotheliomaYes Not barred Not barred Not barred No $90,268.09 Reid
MesotheliomaYes Not barred Barred Not barred No $77,000 Johnstone
Lung cancerYes NA Not barred Not barred No $90,000 Kracht
MesotheliomaYes Not barred NA Not barred No $15,000 McGuire
MesotheliomaYes Not barred Barred Not barred No $36,304.03
Preston
MesotheliomaYes Not barred Barred Not barred No $33,000
It follows that CSR should have leave to appeal and its appeal should be allowed, to give effect to our conclusion in respect of ground 8. James Hardie should have leave to cross-appeal and its cross-appeal should be allowed, to give effect to our conclusions in respect of cross-appeal grounds 2, 3 and 4. While James Hardie submitted that CSR should not have leave to appeal because its grounds did not raise points of principle, we reject that submission. The judge’s orders were final orders. CSR having enjoyed the limited success it has had with respect to ground 8, we see no reason why the error should not be corrected by this Court.
Postscript
Finally, we wish to record our commendation of the judge’s conduct of the trial and the high quality of his reasons for judgment. This was a massive exercise at the trial level. A number of the issues which his Honour had to determine were not the subject of any previous binding authority. If we may say so with respect, the quality and clarity of the judge’s reasons for judgment are exemplary. It is because of that quality and clarity that we have been able more easily to deal with the issues raised before us. Moreover, it is to be remembered that a large number of issues which fell to be resolved by the judge were not the subject of any challenge before us.
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