CSR Limited v Culkin

[1995] HCATrans 90

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P33 of 1994

B e t w e e n -

CSR LIMITED

Applicant

and

ELIZABETH MARY CULKIN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 20 APRIL 1995, AT 3.08 PM

Copyright in the High Court of Australia

MR C.L. ZELESTIS, QC:   May it please the Court, I appear for the applicant with my learned friend, MR J.G. MENGLER.  (instructed by Jackson McDonald)

MR D.R. WILLIAMS, QC:   May it please the Court, I appear with my learned friend, MR J.R.C. GORDON, for the respondent.  (instructed by Slater & Gordon)

DAWSON J:   Yes, Mr Zelestis.

MR ZELESTIS:   May it please your Honour.  In dealing with the question of causation which faced the tribunal below, that is, the Workers Compensation Board, the board for present purposes made three significant findings.  The first was that the hypothesis as it was described of Professor Weill should be accepted and that is the word that was used “accepted”.  The second was that there was no evidence other than the so‑called multiplicative combination of asbestos exposure and smoking as a possible cause of the deceased’s lung cancer.  The third was the ultimate finding that the deceased contracted lung cancer because of his asbestos inhalation.

Now, there was an inconsistency between the first and the third findings because the hypothesis which was accepted was that asbestosis was a necessary precursor for attributing a lung cancer to asbestos exposure.  Now, it was in the means by which the Full Court dealt with that inconsistency that we say error occurred which gives rise to the two special leave questions we have sought to identify in our submissions, the first concerning the extent to which an appellate court is constrained on matters of fact by the positions adopted by the parties and the second is perhaps a more significant question:  what is the position when an appellate court takes a view or interprets a primary tribunal’s reasons in a way which neither party has advocated, what is the position of the appellant, as it were, who, in effect, does not have an opportunity to challenge that interpretation of the board’s reasons.

Here there was no doubt that the deceased had suffered some exposure.  He was not a person who was employed at Wittenoom; he was employed at a sugar refinery.  The board made some findings about the extent of his exposure and the board made some findings about the extent of his cigarette smoking.  In the board’s reasons no mention was made at the critical part of the reasons of the evidence which supported smoking alone as a plausible cause of his lung cancer.  The submission put by the present applicant in the Full Court was simply that the board overlooked that body of evidence and that obvious fact and made an error in both accepting Professor Weill’s hypothesis, yet finding in the absence of asbestosis that the man’s lung cancer could be attributed to his asbestos inhalation.

The Full Court did not accept that submission.  The Full Court was troubled by the fact that it appeared to be too obvious an error to attribute to the board because, on either side of the case, it was clear that smoking alone could have been a possible explanation or was a plausible cause of the deceased’s lung cancer.  In trying to explain the board’s reasons, in our submission, the Full Court placed an interpretation on them which neither side advocated nor supported.

TOOHEY J:   I can see the force of what you are saying, Mr Zelestis, but in a sense it points up the difficulty perhaps in the applicant’s way of identifying any real question of principle other than that the board and the Full Court might have expressed the matter rather differently.

MR ZELESTIS:   It is deeper than that, in our submission.

TOOHEY J:   Could I just go one step further.  There is some concern, I gather, expressed as to what the implications might be for other claims if this judgment stood but, again, it is very hard, I think, to find a question of principle that is sufficient to attract special leave.

MR ZELESTIS:   The question of principle, in our submission, the primary one, is the second.  We say that the first is there as well; that is, that if the parties themselves accept before the Court that certain interpretation of expert evidence is not open, then the Court cannot itself find that the interpretation is open.

DAWSON J:   Why not?  It has been said very recently that the Court does not sit there just to accept one or two rival views that are put to it; it can think for itself.  It is entitled to do so.

MR ZELESTIS:   Well, it certainly is entitled to do so as a general rule, but with respect to the interpretation of expert evidence, when a party accepts that an interpretation which is capable of favouring his side is not open, absent error, fraud, some other vitiating factor, in our submission, the court cannot reject in effect the concession.

McHUGH J:But why?  In Williams v Smith 101 CLR, this Court said a jury is not bound by the way either party interpret the evidence, but can work out its own view of the facts.  Why should there be any different rule in relation to a judge?

MR ZELESTIS:   It is not so much interpreting the evidence, as understanding the evidence and what the evidence means here.  Can I explain it ‑ ‑ ‑

DAWSON J:   But the question really is whether their finding was open on the evidence, that is all.

MR ZELESTIS:   Yes, but in a particular way, because what the Full Court was putting was that one could both accept the Weill hypothesis, asbestosis is a necessary precursor, and at the same time graft upon it a qualification that, in the absence of asbestosis, the combination of cigarette smoking and asbestos inhalation could together constitute a cause.  Now the so-called qualification is in fact a rejection of the hypothesis, the two do not stand, and it is that central point which counsel for the respondent properly conceded on at least two occasions before the Full Court.

TOOHEY J:   But when you use the expression “graft on”, you may mean graft on in the sense that the Full Court simply developed the line of analysis for itself for which there was no evidence or you may mean grafted on in the sense that they took other evidence to arrive at the conclusion at which they did.  It seems to be the second ‑ ‑ ‑

MR ZELESTIS:   Well, with respect, that gives rise to the second complaint, you see, because we are faced on that appeal with a point raised by the court itself, put to counsel for the respondent below during his submissions twice, he says that that reading of the Weill paper and Weill hypothesis is not open, and then in the reasons, Justice Roland, with whom Justice Zeeman agrees, attributes to us the stance that we did not seek to reopen our appeal to challenge the postulated interpretation of the reasons which had been put to my opponent.

Now, there are a couple of errors there:  firstly, as one sees from the transcript that we have put in the application book, we very expressly, if not elegantly, did say to the court, if there is an interpretation to be placed on the reasons which neither side has advanced, we would wish to appeal against it; and secondly, counsel for the respondent dealt with that in his reply.  But, more importantly, the Full Court has gone off and found, or endeavoured to find, some justification in the evidence for the view it has taken, without the benefit of argument, and that highlights the injustice which we say occurred in this case, in that we have been denied the opportunity to address in detail a postulated interpretation of the reasons.  Now, the Full Court deals with it in slightly different ways:  Justice Pidgeon resorts to Dr Robinson’s evidence.

McHUGH J:   Well can I put this to you:  I must say, when I read your submissions I was very puzzled by this whole case, and I read them first before I came to read the judgments.  When I read the judgments, I must say I got a great surprise, because the case seemed to me to be much simpler than the case you seek to put in your submissions.  It seems to me, reading it, all that happened here was that the boards said, well we accept the Weill theory, without asbestosis being present you cannot say that the cancer was caused by the asbestos, but all the board seems to me to have said is, well we accept that, and it is probable in substance that the dominant cause of this is smoking, but it was contributed to by the inhalation of asbestos, and there are asbestos bodies there.  Now what is the matter with that?

MR ZELESTIS:   That, with respect, your Honour, involves using cause in a limited sense in the first of your Honour’s propositions; it involves using cause in the sense of the dominant or only cause.  The Weill hypothesis was not that.  The Weill hypothesis, on any view of it, was that you could not attribute a lung cancer to asbestos inhalation at all, whether ‑ ‑ ‑
McHUGH J:   But they were not writing a paper for the purposes of the Workers’ Compensation Assistance Act 1981.

MR ZELESTIS:   That is, with respect, a different issue and we ‑ ‑ ‑

McHUGH J:   Well, it is not a different issue at all.  The issue under that Act was whether or not this inhalation contributed to the lung cancer and that was the final issue in the case.

MR ZELESTIS:   We accept that there was medical evidence below which could have sustained a finding in favour of the respondent but not an ultimate finding which involved, in the reasoning along the way, the primary step that you accept the Weill hypothesis.  Because that is a point of departure from which there is no return for the respondent.  Now, as I say, we accept that there was evidence below which was capable of leading to a different result, but the board did not do that, the board did not prefer that evidence.  What the board said is, in unequivocal terms, “We think the hypothesis and conclusions of Professor Weill should be accepted”.  Now, that does not admit of a dual notion of causation, one of primary or dominant cause and one of material contribution.

McHUGH J:   Well, it is a question of contribution, is it not?  Nobody seems to have set out in the judgments the terms of the legislation, not as far as I can recollect, but it is sufficient that it contributes, is it not?

MR ZELESTIS:   Certainly.  We accept that a material contribution, a non‑negligible contribution was sufficient.  But, once again, the Weill hypothesis was that, in the absence of asbestosis, you could not attribute at all, you could not attribute a lung cancer to inhalation.  So, that was not the course of reasoning and fact finding which the board pursued in finding against the present applicant.  Now, had the board adopted different findings, then we would not be here.  We might not have anything to quarrel with.  But, the board squarely found that Professor Weill’s hypothesis should be accepted.

McHUGH J:   Well, I am not sure that the board interpreted the Weill report in the way that you did.

MR ZELESTIS:   Well, can I take your Honour quickly to passages from the board’s reasons.  At the bottom of page 9 the board describes, as a theory, the proposition:

that for a lung cancer to be attributed to asbestosis inhalation, a lung had to be the subject of what is described as “defuse interstitial fibrosis” ‑

that is asbestosis.  And then, at page 12 at the top of the page, after referring to the various schools, they prefer the hypothesis supported by the research of Hughes and Weill and they set out extracts from the papers.  And one sees in the two paragraphs, at the end of the first, the word “necessary” precursor and in the second, “only if”.  Those expressions admitted no doubt.  And then, importantly, at 13B:

we believe, again on the balance of probability, the conclusions of Professor Weill should be accepted.

There is no doubt what that conclusion was.  If one looks, for example, at the notice of contention which the respondent filed in the Full Court, at page 27D in the beginning of their paragraph 3, they described Weill’s hypothesis and conclusion in terms that I have used.

TOOHEY J:   But then, having done that, the board turns, at the foot of page 13 to the question, as they identify it, of whether the:

smoking habits together with his exposure to asbestos on the respondent’s premises might, on the balance of probability, be the cause of his lung cancer.

And then, on page 14C, they come to the conclusion that the probabilities are that it was caused by a combination.

MR ZELESTIS:   There are two things to be said about that:  nowhere in that critical passage of the judgment is there a reference to smoking alone as the potential cause and secondly, the conclusion is simply inconsistent with accepting the Weill hypothesis.

McHUGH J:   Well, you keep saying that.  It does not strike me that way, Mr Zelestis, I am afraid.

MR ZELESTIS:   It is, with respect, a logical thing.   Professor Weill’s hypothesis was as I have stated and the attack which was mounted on it by the respondent below was not that which the Full Court adopted.  The respondent, in the Full Court, mounted an argument which was along the lines that the study which Professor Weill’s paper reported did not justify fully the conclusion and that, in cases of fibrosis which could be said to be due to asbestos inhalation, although falling short of asbestosis, one could still attribute cause.

That is an argument, an issue, which the Full Court did not deal with.  We did not lose the case for the reasons our opponents submitted we should lose the case.  We lost it for a reason which we never went to court to face and that was that you could both accept Weill’s hypothesis and at the same time say that smoking and asbestos inhalation, without any reference to fibrosis, could together be a contributing cause.

Our concern and our submission is that an applicant faced with such an interpretation of a board’s findings should be entitled to some notice of that and so as to be able to take the Full Court to all of the evidence which is relevant to it.  That is an exercise which forensically was not done because on the other side of the Bar table it was accepted that you would not read the Weill paper as admitting of the qualification which the Full Court found. 

We do not say for a moment that the concession made on the other side was a concession as to the validity of the Weill hypothesis, it was a concession as to its meaning; how far it went if you accepted it.  Given that concession, there was no occasion for us to argue against anything.  We had an opponent who was not putting against us what the Full Court ultimately found against us and we say that even if there be no question of principle, and we submit there is, we say that in the interests of the administration of justice, we should be given a right to be heard, in detail, on the evidence on the postulated finding.

TOOHEY J:   But you ask for more than that, do you not, in your draft notice of appeal?  You ask for judgment in your favour.

MR ZELESTIS:   Yes.  In our submission it is possible to deal with this appeal, if special leave were to be granted, by confining the argument before this Court to the question whether or not we ought to have been heard.  If we were wrong on that, we lose.  If we were right on that, the matter could be remitted to the Full Court for re-hearing according to law.

TOOHEY J:   It is hard to see how, on any view, this Court could substitute the judgment that you ask for in the draft notice of appeal.

MR ZELESTIS:   I accept that, your Honour, and it may well be, as I say, that there are other issues which the respondent would wish to agitate as it did in the court below, other reasons why it would wish to say it should succeed.  Our central concern, as I have said and I should not really repeat, is that we, in our submission, have not been given an opportunity to answer what the Full Court thought to be the true interpretation of the reasons when that was not the interpretation advocated by our opponents.  Those are our submissions.

DAWSON J:   Mr Williams.

MR WILLIAMS:   Your Honours, can I just go backwards.  As Justice Toohey has pointed out, the case put against us was that the applicant seeks to appeal in order to obtain judgment, not to go backwards and have it re-heard on some other issues.  My learned friend has just mentioned that the applicant lost in the Full Court below for reasons that were not put against it.  The whole case upon which the respondent put the case to the board and in the Full Court was that fibrosis or evidence of asbestos inhalation affecting the lung, short of asbestosis, was a potential indicator of a contribution to lung cancer, assuming, as was assumed at all stages, that smoking was a given and smoking was a cause of lung cancer.

So, with respect, it is not right to say that he lost for a reason that was not put against him.  He lost for the reason that the board and the Full Court both accepted evidence, they may have done it in different ways and with different reasoning processes, that was put by the respondent.

Now, my learned friend’s entire submissions are founded on a proposition that the Weill theory or hypothesis is that asbestosis is a necessary precursor to the contribution of asbestos to a lung cancer.  If one looks carefully at what the board found in relation to that, that was not what they found at all.  They had, as was pointed out by the board, heard evidence from a number of witnesses in relation to the Weill hypothesis and their finding in the end at page 12 letter C was to refer to two paragraphs.  In the second paragraph, having referred to evidence, they said:

These findings are all consistent with lung fibrosis (asbestosis) having been a necessary precursor for asbestos induced cancer in the population.

Consistency is not to exclude anything else.  It is an epidemiological study based on the study of 420 asbestos workers, all of whom effectively were smokers.  It is an epidemiological study based on, as they point out in the first line of that passage “x-ray film evidence”.  All that the epidemiology demonstrated was that there is a consistency between a finding of asbestosis and lung cancer on what is basically primitive medical evidence.  In the next paragraph they say:

Finally these data may provide further evidence to support the common practice of attributing lung cancer to exposure to asbestos only if asbestosis is also present, otherwise these tumours are, in most cases, due to cigarette smoking.

“Further evidence to support” is hardly the language of conclusion.  The board also then immediately goes on to refer to another study and this is a study based not on radiographic evidence, but on histopathological evidence.  The Sluis‑Cramer paper is at the bottom of the page referred to in these terms:

In conclusion this study suggests that asbestos caused bronchial cancer is almost always associated with some degree of histological demonstrable asbestosis.  It must be emphasised that these results should not affect compensation bodies -

and go on to point out that:

slight asbestosis is commonly, and moderate asbestosis occasionally undetected radiologically.

In other words, the premise upon which the Weill study was founded is hardly likely to lead to convincing scientific proof.

In accepting it, over the page on page 13, they point out that:

No witness was prepared to state that Professor Weill’s conclusions were wrong, just as Professor Weill was not prepared to state that the medical opinions contrary to his were incorrect -

Notwithstanding that, the board went on to say that until other studies show on balance something different, Professor Weill should be accepted.  That is the foundation upon which the applicant seeks to draw conclusions against the other findings.  With respect, it is a very weak acceptance of what is merely an epidemiological study.  If you are faced with, on the one hand, epidemiology relating to 420 workers in a foreign country on radiographic evidence, and tangible evidence of the lung tissue of the deceased examined by not less than three pathologists and commented upon by not less than three other respiratory physicians, it is not inappropriate that in weighing the evidence the board would have come to the conclusion that would give greater weight.

That is exactly what they did.  The explanations offered by the Full Court, while they go in a different route, are completely consistent with that.  The evidence was there to support the finding in relation to the Weill thesis.  The evidence was there to support the finding in relation to the pathology and the clinical evidence which is not referred to in detail by the board but is referred to in greater detail by the Full Court.  Medical science, as the board carefully pointed out, is not able to offer a complete explanation of the cause of cancer in this case, or perhaps even in any case, and it is not therefore implausible that medical evidence presented to the best of the ability of the medical scientists engaged by the parties would come up with inconsistent results.

That does not mean to say that the board has to resolve the inconsistency.  There are some very well‑known cases in which exactly that sort of issue has arisen:  Adelaide Stevedoring v Forst, McGhee v National Coal Board, referred to by Justice Pidgeon, and subsequent to that Wilsher v Essex Area Health Authority.  It was not the board’s obligation to reconcile what the scientists were not able to reconcile in their view, nor was it the job of the Full Court.  They did their best with the evidence that was there.  The evidence was there for the findings that were made and there is no basis upon which the applicant could on an appeal upset the finding in relation to the clinical and pathological evidence because it was there for the board to act upon.

In our respectful submission, given that both parties were, in the board and in the Full Court, pushing their respective cases as completely and as fully and as thoroughly as was practicable, the conclusions reached by the board were open and, in our respectful view, correct.  On that basis no appeal could succeed.

DAWSON J:   Thank you, Mr Williams.  Mr Zelestis.

MR ZELESTIS:   There are just two brief things we wish to say in reply.  Firstly, my learned friend’s submissions concerning what was the Weill hypothesis and conclusions supported by the board fail to distinguish between two quite separate things, that is, what were the findings of the study, and what was the hypothesis?

The findings are what are expressed at page 12, but the hypothesis is not a finding.  A hypothesis is a theory and the theory is described at the bottom of page 9 that I took the Court to earlier and that is a theory that involves a necessary condition, not merely a sufficient one.  So the qualifications which Professor Weill certainly expressed on the findings of the study do not detract from the force of the hypothesis, which is that ‑ ‑ ‑

McHUGH J:   But the question you were asked in the Full Court was about whether smoking could be the mediating influence to which the Weill paper referred, but what I put to you earlier, Mr Zelestis, was that the board did not rely on the combination of smoking and asbestos or the asbestos as being a mediating influence.  By the use of the term “per se”, which appears on page 14 of their judgment, they seem to interpret the Weill paper as saying, “Well, you can’t say that asbestos has caused it itself unless asbestosis is present.”  But they say nothing at all about the combination of smoking and asbestos inhalation.

MR ZELESTIS:   Your Honour, I can only give to that the same answer I gave earlier and that is that on any view of it - and that was the effect of the concession made by my opponent.  The effect was that you could not read the Weill paper as postulating that notwithstanding what was said about asbestosis being a necessary precursor, some combination of asbestos and other factors could result in the attribution of a lung cancer ‑ ‑ ‑

McHUGH J:   I know, but it seems to me that, as far as the board was concerned, having made the findings they did about the Weill paper, they just pushed it off to one side and said, “Well, it doesn’t deal with the situation where you have got a combination of smoking together with exposure to asbestos.”  If one had to guess, I would suspect that the board thought that the real principal cause of his death was smoking but that it was contributed to by the fact that he was exposed to asbestos and inhaled it.

MR ZELESTIS:   That interpretation involves a number of, we would submit respectfully, large steps because, first of all, the board overlooks - it does not say anywhere at the critical part of its reasons, as I said earlier, that smoking is potentially the sole cause.  Neither does it go into the evidence to explain how you would express an acceptance of the Weill hypothesis yet qualified in this way.  If you were setting out to write a set of reasons in

which you were going to reach that conclusion, one would have to travel over the other evidence.  The board does not attempt to do that.

The second thing I wish to say about my learned friend’s submission is that he mentions the evidence of pathologists but the board did not take that route either.  The board did not say that the little bit of fibrosis that was present in this man’s lung tissue could be attributed to asbestos inhalation.  All they said at page 13C was - I refer to the forensic pathologist’s evidence - that:

there was a “little bit” of fibrosis and that it could have been related to the pneumonia.

So the fact that there was some other debate going on in the case between the parties about the significance of such little bit of fibrosis as was there, does not seem to have influenced the board in its reasons because it has not picked up that evidence and attributed asbestos inhalation as the cause of that little bit of fibrosis.  So, once again my learned friend submits, “Well, there is another way that the board could have found against us.  The board’s reasons do not explain that that is how they found against us.”  May it please the Court.

DAWSON J:   Thank you, Mr Zelestis. 

The finding made by the Worker’s Compensation Board was open to it on the evidence.  Whilst not endorsing all that was said in the court below, we are of the view that an appeal does not enjoy sufficient prospect of success to warrant special leave to appeal being granted.  Accordingly, special leave is refused.

MR WILLIAMS:   The respondent seeks an order for costs.

DAWSON J:   Mr Zelestis?  Special leave is refused with costs.

AT 3.41 PM THE MATTER WAS CONCLUDED