Dasreef Pty Limited v Hawchar

[2010] HCATrans 339

[2010] HCATrans 339

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S170 of 2010

B e t w e e n -

DASREEF PTY LIMITED

Applicant

and

NAWAF HAWCHAR

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 2010, AT 11.49 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR T.G.R. PARKER, SC, for the applicant.  (instructed by Moray & Agnew Solicitors)

MR B.M. TOOMEY, QC:   If it please your Honours, I appear with my learned friend, MR F. TUSCANO, for the respondent.  (instructed by Keddies Litigation Lawyers)

HAYNE J:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, the application concerns the requirements necessary to satisfy section 79(1) of the Evidence Act 1995 (NSW) in order to make admissible opinion evidence. That provision is one in common form throughout almost all of Australia.

HEYDON J:   Half Australia. 

MR JACKSON:   I am sorry, your Honour?

HEYDON J:   Not South Australia, not Western Australia, not for the Northern Territory and not Queensland.  That is about actually three‑quarters of Australia.

MR JACKSON:   Well, your Honour, I suppose it depends if one does it geographically or by reference to number of persons. Your Honours, what I was going to say was this. The evidence under section 79(1) is admissible if in terms of that provision the person giving it has specialised knowledge based on the person’s training, study or experience and the essential question is what must appear in relation to the person’s training, study or experience in relation to the opinion which he seeks to express. Your Honours, this is a matter which can be of acute significance where, as in the present case, there are limited rights to appeal. Could I refer in that regard to page 103 of the application book and paragraph 3 where you will see that they recite section 32(1) of the Dust Diseases Tribunal Act and the ability to appeal to the court on a limited bases, including the admission or rejection of evidence. 

Now, your Honours, may I go for a moment very briefly to the facts.  Your Honours, the opinion evidence sought to be adduced was that of Dr Basden.  Could I just say immediately that the whole of his evidence was admitted as if on a voir dire – was dealt with as if on a voir dire, so there was a contest to its admissibility in any event.  As the Court of Appeal said at page 114 in paragraph 24, about line 30:

Dr Basden’s evidence was important to the primary judge’s reasoning.  It was not the only material or consideration that the primary judge relied upon for his conclusion as to breach, but it was at the centre of his reasons.

They went on to say that if one were to seek to maintain the judgment on any other basis, that would be something that the Court of Appeal itself would not enter into and no doubt the matter would be remitted to the court below.

HAYNE J:   Would not enter or could not enter, Mr Jackson?

MR JACKSON:   Your Honour, I would have to say that it may well be a question, if I could go back to the provision that I was referring to earlier, about the ambit of the Court of Appeal’s decisions.  Your Honours, that is an issue that I know was dealt with in part in a somewhat related context in Kostas and is an area which has been the subject of some discussion in cases in the New South Wales Court of Appeal and elsewhere.

HEYDON J:   Can we just go back one step.  You just submitted, in effect, perhaps it follows from what you said, that if you won on appeal the matter would have to go back to trial.  That is not what your draft notice of appeal says.

MR JACKSON:   No.  Your Honour, could I just say this.  What I was seeking to say was that the Court of Appeal was of the view that the matter could not be sustained in favour of the other side in the sense that it would not deal with that itself.  If your Honours then go to our notice of appeal, the draft notice, which is at pages 142 and 143, we have asked that the orders made by the Dust Diseases Tribunal be set aside if the appeal is allowed and then, your Honours, that there be judgment for us.  I think it is right to say that we have not recognised the possibility in that that the matter might be remitted to the Dust Diseases Tribunal, but we would accept that that is a possible result of the matter and it may depend on what is sought to be established by the other side if that were the case.

Your Honours, the evidence of Dr Basden that was of considerable significance and is referred to in the reasons for judgment, but if I could go to the source of it, is in paragraph 14 of his affidavit.  Your Honours will see there is a bundle of additional material which has numbers at the top right‑hand corner of the page and the additional material is at page 55 of that.  It is, I think, the second or third last page.  You will see that contains paragraph 14 and it refers, your Honours, at about the sixth or seventh line, to the Australian “Exposure Standards”.  Then he goes on to say, the sentence commencing, “The actual dust concentrations” and your Honours will see the passage goes through to about halfway through that paragraph where he says:

However, it most certainly would not be from half to two ten‑thousandths of a gram per cubic metre of air, but more realistically would be of the order of a thousand or more times these values or even approaching one gram, or thereabouts, per cubic metre.

You will see he refers to his personal experience in the passage immediately following, he had seen it done once.  Then, your Honours, he refers to the fact, a little further down, that:

a “tent” fitted with an exhaust fan

Now, your Honours, could I just pause at that point to say that paragraph 14 refers to the Australian exposure standards, but if one looks at the primary judge’s reasons in a passage which is extracted by the Court of Appeal at page 133 – I am sorry, I have given your Honour the wrong reference, but the point I was going to make about it – I am sorry, your Honour, I have just lost that.  If I could just say this.  The figure of two milligrams per cubic metre is a weighted average for one week and only respirable dust, that is, the small particles which are involved – I am sorry, page 107 I should have said, your Honour.  Your Honours will see page 107 in paragraph 17 that there is a quotation from paragraph 65 of the reasons which sets out the standard and it refers only to respirable dust and what it means, of course, is that there has to be forty hours at 0.2 milligrams per cubic metre.

Your Honours, if I could return to the evidence of Dr Basden at paragraph 14, your Honours will see or recall that he referred to there being dust concentrations of the order of a thousand or more times approaching, in the end, a gram per cubic metre.  If I could say this, your Honours.  One might readily accept, as the courts below did – and your Honours can see at page 106 in the passages quoted in paragraph 16, that Dr Basden had considerable experience in relation to, as a general topic, industrial dust.  When it came to expressing the opinions which he sought to give in the present case however, first of all he had taken no measurements of the levels of dust generated from the type of work carried out by the respondent, although that was measurable.  He had only once, as appears from paragraph 14, himself seen sandstone being dry cut and his views were based on the assumption that the respondent was working in a tent and that the concentration that he gave was not a time weighted average. 

In that regard, your Honours, could I go to page 45 of the additional materials.  This is the conclusion of the oral evidence of Dr Basden and your Honours will see commencing at line 24 on the page number at the top right‑hand corner, 45, there is a cross-examination which goes through to page 46 about line 13.  Now, your Honours, I will not read that out but could we invite your Honours to note, in effect, the matters to which I have just referred as being dealt with in that passage.  Your Honours will have seen that passage. 

The primary judge, at page 23 in paragraph 74 and at page 27, paragraph 81, seems to have given, with respect, little or, we would say, no proper attention to what had been said by Dr Basden in those answers and, in particular, your Honours, to the assumption that the work that had been performed by the respondent was being performed in a tent to avoid the silica dust or the dust going from it.  Your Honours, the evidence, as your Honours will see at page 13, paragraph 38, was that the tent had only been used on two or three occasions. 

Now, it is plain, your Honours, at page 27 in paragraph 82, the judge proceeded to work on the basis of Dr Basden’s evidence.  Your Honours, the purpose of Dr Basden’s evidence was to show that the relevant standard had been exceeded and we refer, if I could go to our summary of argument at page 148 in paragraphs 22 to 25, to what we submitted were the deficiencies in the evidence qualifying Dr Basden to give that opinion.

HAYNE J:   Can I just understand better.  Is your complaint directed primarily to whether sufficient basis was demonstrated for expressing the opinion that we see at page 55 in the sentence at about line 15, “However, it most certainly would not be from”, et cetera, or is it a complaint about the generality or imperfection with which that opinion was expressed?

MR JACKSON:   Your Honour, that, in a sense, draws the line between, on the one hand, the admissibility of the opinion and the weight to be attributed to it.  In the end, and I say, in the end, of course, if the evidence were admitted, it would then be a question of weight, but the question really arises as to the admission of that evidence.

HAYNE J:   Yes.

MR JACKSON:   That is the core question, your Honour.

HAYNE J:   Thus the core question becomes whether he demonstrated, you say, in evidence a basis upon which he could express the opinion in that paragraph.

MR JACKSON:   Yes, your Honour.  What we say about that is that we accept, of course, that he was a man who had a great deal of experience dealing with dust, but what there has to be, in our submission, is evidence demonstrating that he had the qualifications or experience to express the opinion that was sought to be contended in the present case.  In relation to that, your Honours will appreciate that the issue to which his evidence was directed was whether the terms of a particular standard, which was a time weighted average, had been exceeded.  That was the evidence that he sought to give. 

Your Honours will see, I do not want to get into an argument about the detail of it, but your Honours will see, in putting it in broad terms, that what he did was to give a round figure, in effect, of multiple of a thousand times in relation to something where one was seeking to establish whether a particular standard had or had not been achieved.  As I said, your Honours, there was no measurement of it; it was capable of being measured.  There was no attempt to give any empirical evidence to demonstrate that that was so. 

Your Honours, what we would say is that there are differences of view as to how section 79 is to operate.  We have referred to that in our written submissions in paragraph 20 page 147 and we would submit that the matters to which we have referred in paragraphs 35 to 37 of those submissions are ones which merit the grant of special leave.  Your Honours, may I amend orally, if I may, paragraph 36 of that to take into account what your Honour Justice Heydon said at the commencement of our submissions.

HEYDON J:   Just to raise one aspect of your draft notice of appeal.  The ground numbered 3 says:

The Court of Appeal ought to have held that the primary Judge’s finding that the applicant had breached its duty of care to the respondent was not reasonably open on the admissible evidence. 

Are you intending to attack in any way the Court of Appeal’s conclusion in paragraph 53 of its judgment, which is on page 125, where I think the Court of Appeal erected as a prop supporting the trial judge’s conclusion a statement he made in paragraph 87 of his reasons for judgment to the effect that he could take into account his experience in the Dust Diseases Tribunal to support the view that the disease was usually caused by very high levels of silica exposure, that is, on one approach that is simply plainly wrong and the Court of Appeal’s dressing of it up as an attempt to understand the evidence better is not convincing, but do you take any such point?

MR JACKSON:   Well, your Honour, it is right to say that we have not referred to that in our notice of appeal.  We would, I think, if special leave otherwise were to be thought appropriate, perhaps seek to add that as a ground of appeal in the matter.

HAYNE J:   In place of or in addition to the ground numbered 3?

MR JACKSON:   Your Honour, we would put it as a specific ground.  So far as ground 3 is concerned, what we would seek to say is ground 3 makes an assumption that we are, in effect, correct in relation to ground 2.  If ground 2 is correct, then the Court of Appeal ought to have set aside the judgment of the primary judge.  There would be a question of the right course to follow following that.

HAYNE J:   Whether it was remit or enter judgment accordingly?

MR JACKSON:   Yes.

HAYNE J:   Yes, I see.  Thank you, Mr Jackson.  Yes, Mr. Toomey.

MR TOOMEY:   If it please your Honours.  It is necessary for your Honours in deciding this application to have regard to the context of the case.  Mr Hawchar, at the time he finished work for Dasreef in May 2005, was 34 years old.  He had been working for Dasreef since October 1999 when he was 28 years old.  His Honour found that there were 23 measures of exposure to silica during his life, and that is not challenged and was not challenged in the Court of Appeal.  His Honour found that three of those measures related to some light experience in Lebanon before he came to Australia and to some private work he did in Australia while he was working for Dasreef. 

So the court was dealing with it on the basis that this 34‑year‑old man had had 20 twenty-thirds of whatever exposure to silica he had had in the employment of the applicant and the evidence of Professor Henderson, the pathologist, was that the period of time in which the silicosis manifested itself indicated or could indicate intensive exposure.  That is the context in which the case is decided.  It is also decided on the basis that there was evidence, which has not been referred to by my learned friend, from a man who owned a factory next door, Mr Buono, who said that three or four times a week for four hours at a time he would see the yard of Dasreef thick with dust, clouds of dust covering the yard, so much so that the cars outside his factory and in his factory were covered with dust and that there were complaints from his workers.

I am told that the evidence about the workers was that they were coughing and complaining about the effects of the dust coming into the adjoining premises.  That stopped in 2003 because of the complaints to the council and the council stopped it and the yard cutting which gave rise to those clouds of visible dust ceased to happen.  That was in the last two years that the respondent was there.  Now, it is in that context that Dr Basden was called to give evidence and the particular part of his evidence to which I would refer your Honours, having regard to the fact that it is his expertise sufficient to give the evidence which is challenged ‑ ‑ ‑

HEYDON J:   I do not think so.  It is not his expertise primarily which is challenged.  It is the form in which he has expressed his reasoning.  There needs to be some demonstration at the formal level, does there not, of a connection between his expertise and the conclusion to which he has come to show that that conclusion is materially based on expertise.

MR TOOMEY:   I have to show your Honour that from the passage I wish to take you to.  That is starting at the top of page 24.  He acknowledges that he cannot say what the concentration of respirable silica would have been in the breathing zone when he was cutting stone with an angle grinder.  He would not claim to be able to express an opinion based on specialised knowledge that the existence of a visible cloud enables one to quantify the amount of respirable silica and he says:

A.That’s correct, the actual figure couldn’t be given. 

His Honour said:

Q.Could a range be given?

A.It’d be difficult to say, your honour, precisely.  I mean there’s a lot of dust and a visible cloud and it has a long probability spread part of which of [course] is going to be in the respirable size [range] but as for amounts, no, without actually taking measurements it would be difficult to quantify exactly.

Now, that is one of the problems that a claimant before the Dust Diseases Tribunal faces in cases like this.  He faces the fact that he has been exposed to something, he did not know what it was doing to him, at least until the disease advanced, and, of course, he did not have the equipment or the authority measured.  So Dr Basden finally says this:

he express the opinion that the dust in Mr Hawchar’s breathing zone was in the order of a thousand or more times that permitted by the standard as a time weighted average. 

His Honour asked him what was the basis.  He said:

Well, general knowledge of being in this area of dust for quite some time, your Honour, being used to the amounts of dust when seen on a microscope slide when dispersed in the air, what the clouds look like, the 0.10 milligrams of dust is not a very big amount.  I’ve written some reports which actually have a photograph of 10 mg on a microscope slide sitting on the balance showing it is 10 mg that’s there.  It’s a very, very small amount and that dispersed in one cubic metre of air would be virtually invisible but would show up in a very large room, but therefore when there are clouds of visible dust within an area of a metre or so of the source the concentrations are going to be very high.

Now, he is basing that on his experience.  He is basing it on measurements he has done in like circumstances and he says he is justifying what he said before that when you have visible dust in clouds, that there may be as much as a thousand times the standard.  The standard, your Honours, is 0.2 of a milligram which is two ten-thousandths of a milligram, which is a very slight concentration.

HEYDON J:   The thing is this, though.  The standard refers to eight hours multiplied by five.

MR TOOMEY:   Yes.  Well, his Honour did deal with that, your Honour.

HEYDON J:   Yes, but how does the witness get from what he has said on page 34 at about point 3 of the page that you read out to that conclusion?  What is the express link between them?

MR TOOMEY:   I am sorry, your Honour, I did not get the reference?

HEYDON J:   Page 34, lines 13 to 20 I think was the last main passage you read out.

MR TOOMEY:   I am sorry, that is not my page numbering, I do not think, your Honour.

HEYDON J:   Page 221 of the transcript.

MR TOOMEY:   I am sorry, in the additional material.  How does he get to that?

HEYDON J:   How does he get from that to the conclusion that there was a breach of the standard and that the quantity was actually a thousand times greater?

MR TOOMEY:   His Honour did deal with that, pretty shorthand I concede, but his Honour said ‑ ‑ ‑

HEYDON J:   Not so much his Honour.  It is how the witness does it. 

MR TOOMEY:   Yes, but his Honour said that in saying that he was saying, well, it could be, but he was not conceding that it was and he was not resiling from his opinion.  If the question is, was there material upon which his Honour could have made the finding, our respectful submission is ‑ ‑ ‑

HEYDON J:   Sorry, the question is, was this evidence admissible?  Much of Mr Jackson’s submissions were dedicated to attacking its validity as a piece of reasoning.  That is not an admissibility attack.  The admissibility attack depends on the form in which the reasoning is expressed; I question, I ask, I ask you to refute the proposition that one does not find any coherent statement of reasoning, which, whether it be right or wrong or weighty or not, is nonetheless a piece of reasoning indicating a connection between the expertise and the ultimate conclusion.

MR TOOMEY:   Your Honour, the ultimate question, we would say, in the case was the concentration of silica in the air because that was the question.  The result of that question was going to determine whether there was of course a breach of duty.  We say, with respect, that Dr Basden’s evidence went straight to that point.  He knew what the permissible concentration was.  He had measured dust when it was available and in visible concentrations.  He had used the accepted means of measuring such dust and he expressed to his Honour what you would find in such concentrations. 

When he referred to 10 milligrams, your Honour, he found he was talking, of course, of more than his Honour did because his Honour’s ultimate conclusion at paragraph 83 was 0.25 milligrams per cubic metre which exceeded the permissible limit by 25 per cent.  His Honour arrived at that in the way which is set out in paragraphs 82 and 83.  The question of the rapid onset of the silicosis, in our respectful submission, could not be excluded and his Honour was entitled to take into account, was proved in the case, was available to him on the silicosis case, although it was admitted in the scleroderma case, but the evidence was all taken together.  Perhaps I should take your Honours to just what Professor Henderson said.

HAYNE J:   To demonstrate what proposition, Mr Toomey?

MR TOOMEY:   To demonstrate the proposition, your Honour, that a rapid onset of silicosis – and in this case it appears that the probabilities are highly that the silicosis was caused during the five and a half years that this man worked for the applicant – demonstrates a high concentration of silica.  In our respectful submission, the consideration of the other evidence was entitled to be informed by what had been said by Henderson.  That is about as far as I can go, your Honours.

HAYNE J:   Yes.

MR TOOMEY:   But can I just say this.  There is an air of unreality about a case in which a man of 34 develops silicosis.  Twenty twenty-thirds of his exposure has been caused by the applicant.  The silicosis has developed over a period of five and a half years, which is rapid.  There is evidence that rapid development is linked to high exposure, and then we have a man who has measured dust in clouds.  He says he thinks that this could have been a thousand times more than the standard.  He says under cross-examination, yes, it could have been, it could have been less.  This is a very difficult case for a man who is employed in circumstances where he is not in control of his environment and it is a case where the industrial hygienist who was qualified by the applicant was not called to give evidence.  May it please your Honours.

HAYNE J:   Thank you, Mr Toomey.  Yes, Mr Jackson.

MR JACKSON:   Your Honour, our learned friend’s argument at the start and, in a sense, at the finish of it referred to the various circumstances that might in the end support the notion that the plaintiff should have succeeded.  A difficulty with that is that, if one goes to page 114 and back to the passage to which I referred, I think, at the start of our argument, you will see in paragraph 24 commencing about line 30 is a passage to which I referred earlier.  It was said there that Dr Basden’s evidence was at the centre of his reasons and then it said that:

Further factual analysis would need to be undertaken to reach the conclusion asserted, absent reliance on Dr Basden’s evidence.

Well, now, your Honours, that has not been done in the Court of Appeal and it would be necessary to examine what the other evidence was.  In that regard, your Honours, if one goes to the reliance on Dr Henderson’s evidence at page 123, you will see at about line 30 on that page that he was not able to put numerical values on the matter.  Your Honours, could I say, too, that one does not get a cause of action merely because one works with sandstone in the course of one’s employment and silicosis may result from that.  What there needs to be shown is a want of reasonable care or another breach. 

That was sought to be shown by the fact that the standard was exceeded and in order to establish that, there had to be evidence which dealt with that issue.  Your Honours, that is all I wanted to say.  I am sorry.  One other thing I should have said.  Not all dust, of course, is respirable and it is only the respirable parts that matter and, of course, when working, not every aspect of dust that may come from the use of an angle grinder necessarily goes directly in the face of the person using it.

HAYNE J:   Thank you.  There will be a grant of special leave in this matter.  Would counsel agree that it is likely to be a one‑day case?  Mr Jackson, you may have been in Court when you have heard it said to other parties to take account of the new rules that will come into force on 1 January.  It will be necessary for the notice of appeal to be filed this side of Christmas and directions will be given to the solicitors by the Registrar to accommodate that alteration of rules.

MR JACKSON:   Thank you, your Honour.  May we have leave to amend the draft notice of appeal in the manner in which I indicated in our submissions?

HAYNE J:   Yes, you have that leave.  Mr Toomey.

MR TOOMEY:   Your Honours, could I ask that the grant be conditioned, having regard to the nature of the appeal by an insurer against a worker who is not in good circumstances, whether your Honours would condition the leave on the costs of the appeal being paid in any event by the appellant?

HEYDON J:   And the costs orders below not being disturbed?

HAYNE J:   What do you say, Mr Jackson?

MR JACKSON:   Your Honour, we would accept those conditions and could I just say this, that there is no extant cost order so far as the costs of the proceedings at first instance are concerned.  They have been remitted back to that court.  So far as the costs of the Court of Appeal are concerned, I think at the time the papers were lodged there had not yet been an order made by the Court of Appeal.  That order has now been made.

HAYNE J:   So that order would remain undisturbed, would it? 

MR JACKSON:   Yes.

HAYNE J:   So on the conditions that have been indicated there will be a grant of leave.

AT 12.29 PM THE MATTER WAS CONCLUDED