Dasreef Pty Limited v Hawchar [2011] HCATrans 81

[2011] HCATrans 81

[2011] HCATrans 081

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S313 of 2010

B e t w e e n -

DASREEF PTY LIMITED

Applicant

and

NAWAF HAWCHAR

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 APRIL 2011, AT 10.17 AM

Copyright in the High Court of Australia

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

MR B.M. TOOMEY, QC:   May it please, your Honours, I appear with my learned friends, MR F. TUSCANO and MS M.A. KUMAR, for the respondent.  (instructed by Slater & Gordon)

FRENCH CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  The Court should have a copy of our outline for oral submissions.  As the Court will see from that I would propose, subject to the Court of course, to deal briefly with some matters of background and then go on to the questions adverted to at the top of page 2 in the order in which they there appear. 

Your Honours, may I turn to the background of the matter and I think I can do so relatively briefly.  The respondent, who was a stonemason, has silicosis.  He recovered in the Dust Diseases Tribunal the sum of $131,000‑odd against the appellant in respect of that condition.  The appellant had been his employer for a period of a little over five and a half years from October 1999 to May 2005.  He worked for the appellant, first as a labourer, then as a stonemason.  Not all the work he carried out was at the premises of the appellant and your Honours can see that referred to in volume 3 at page 582, in paragraph 33.

Now, your Honours, his employment by the appellant was not the only circumstance in which he had been exposed to silica dust.  He had worked with sandstone part time for a year in Lebanon before he came to Australia, and he did some private work at weekends between 2002 and 2005, and your Honours, that work outside his employment by us is reflected in the finding which is at volume 3 at page 588, paragraph 58, that the judge assessed the relative contributions in the way set out there with the effect that our relative contribution to his “silica burden”, as the judge put it, was 20/23rds and that gave rise to the division up, which you will see at page 601, paragraph 95. 

Your Honours, the adoption of that course reflected the notion that silicosis was caused by the cumulative effect of inhalation of silica containing dust.  Your Honours will see that referred to by the primary judge at page 600, paragraph 92 – the last sentence of paragraph 92.  Your Honours, it is in the nature of things that working sandstone is capable of producing particles of silica of respirable size - your Honours, I pause slightly in saying respirable size, because there are some questions of what is meant by “inspirable” and “respirable” and so on and I will come to those in just a moment, if I may – and accordingly that precaution should be taken to reduce the intake of silica by workers in a field. 

It does not follow of course, your Honours, perhaps if I could interpolate, that an employer in that area is liable, under the general law, to every employee who contracts silicosis.  But in relation, your Honours, to precautions during the time that the respondent was employed by the appellant there were in force standards and the standards provided for a maximum of 0.2 milligrams per cubic metre, average airborne concentration calculated over a five‑day working week at eight hours per day.  That is referred to by the primary judge at page 590, paragraph 65.  It goes over on to page 591, where you will see at about line 11 on that page that:

In 1996 WorkSafe Australia adopted 0.2 mg/m³ as the maximum time weighted average (TWA) to which a person may be exposed in industry.  This is the average airborne concentration calculated over a normal eight‑hour working day for five working days.  (The evidence does not spell this out, but I assume that this standard relates to particles of respirable size.)

Your Honours, there is as one might expect, a difference between inspirable and respirable particles and if I could go to volume 2 at page 206?        You will see a reference at page 205 in paragraph 2.2.4 to “Particle size” and you will see then at about line 20 a definition of “respirable dust” and the difference is illustrated diagrammatically at page 206 in the figure on that page.  One can see at the top of the diagram, the diameter of the particle size in micrograms, or microns, I think they are commonly called.

Your Honours, one sees then that at the bottom of the diagram, there is something indicating what are the size of “Respirable particles”, and the size then of “inspirable particles”, those being ones that can get into the mouth, to put it shortly.  “Respirable” are ones that go from the mouth into the lung.  Your Honours, also, you will see at the top of the diagram the relevant figures.

FRENCH CJ:   This is all part of the Standard 1715.  It is incorporated in the standard.

MR JACKSON:   Yes, it is, your Honour, and at page 283 there is a relevant extract from the standard.  Your Honours, when I say “the relevant extract from the standard” that is slightly inaccurate.  In fact, the document is not itself the standard, but it shows the part.  Your Honours will see that at page 283, and in the answer at about line 32 on the page, you will see:

since May 1995, the following amendments to the national exposure standards have been declared by the National Commission.

You will see then about two-thirds of the way down that table “Silica, (respirable)”, and then the 0.2 milligrams per cubic metre, time weighted average. 

Now, your Honours, there were findings by the primary judge in relation to the work done by the respondent.  Could I go to those?  In volume 3 at page 588, you will see a heading “Findings on exposure” and you will see then in paragraphs 55 and 56 what the judge said about the period between 1999 and 2005 in paragraph 56, and if one goes also to page 597 in paragraph 82, in the first few lines of that paragraph, he refers to the use of the “angle grinder” – I will come to the remainder of the paragraph in just a few moments.

But, your Honours, the essence of the matter was the angle grinding and whilst one sees in paragraphs 84 through to 87 at pages 598 and 599 that the judge said that the calculation which he essayed in paragraph 82 and to which I will return, that in addition to that there had to be taken into account the matters referred to in paragraphs 84 to 87 and they include as being of the “greatest significance”.  You will see in paragraph 87 the matter to which he there referred, taking into account his experience as he there referred to.

Your Honours, the judge used the time involved in angle grinding to determine that the respondent’s exposure had exceeded the 0.2 milligrams per cubic metre and he did this in paragraphs 82 and 83 at pages 597 and 598.  He there arrived at the conclusion that to summarise, first of all at 30 minutes a day using the angle grinder the permissible concentration was exceeded by 0.05 milligrams per cubic metre and at 40 minutes per day the permissible concentration was exceeded by 0.13 milligrams per cubic metre and he is speaking, of course, of a time‑weighted average. 

The way in which he arrived at that result or the way in which that result was achieved was by taking into account the evidence of Dr Basden that appears in volume 2 of the appeal book at page 320.  That is page 7 of Dr Basden’s report.  The report commences, in terms of substantive text, at page 314, but your Honours will see that the relevant part is the paragraph numbered 14 at page 320. 

At page 320 and, your Honours, I will come to its terms in just a moment, but could I invite your Honours while doing so to note one observation of the Court of Appeal in relation to the course of the case, as it were, which your Honours will see in volume 3 at page 668 and it is in paragraph 24.  Your Honours will see that paragraph 24 commences with the recording of a submission that, to put it shortly, the respondent should win in any event even if Dr Basden’s evidence were not taken into account.  But the Court went on to say about line 32:

The difficulty with this approach is that it is not how the primary judge approached the matter.  Dr Basden’s evidence was important to the primary judge’s reasoning.  It was not the only material or consideration . . . but it was at the centre of his reasons –

and the court then goes on.  Now, your Honours, the evidence of Dr Basden had been objected to and a voir dire took place in relation to that evidence.  That is referred to by the Court of Appeal at page 671 in paragraphs 33 and 34.

FRENCH CJ:   The criticism was that the voir dire segued into the substantive hearing without a clear ruling.

MR JACKSON:   Your Honour, the criticism had, I suppose, a number of aspects.  One is, I think, what your Honour put to me.  The other was that the actual definition in terms of recording of what had taken place could have been clearer.  I simply mention that.  Your Honour, perhaps I should just say this.  It is not unknown, of course, where there is an objection to the admissibility of material that a voir dire take place and then if the decision is against the parties that the parties adopt the evidence that has gone on the voir dire, either fully or to some extent.

Now, your Honours, the question to which Dr Basden’s evidence was directed was, and must necessarily have been, whether a time‑weighted average had been exceeded and that, in our submission, was the basis on which the courts below had decided.  Coming then to page 320, volume 2, Dr Basden’s evidence - your Honours, it was somewhat startling.  Your Honours will see that in the first part of it, commencing at the top of the page and going to about line 20, he said that the relevant standards were that:

the concentration of airborne particulates inhaled by the wearer from inside the mask should not exceed the –

standards, in plural – the 0.05 being the United States standard, 0.2 being the Australian standard.  He went on to say that the actual dust concentrations which were present were never, or presumably the evidence was they were not:

measured with the appropriate instruments while work was in progress.  However, it –

and what the “it” was requires some identification –

most certainly would not be from half to two ten‑thousandths of a gram per cubic metre of air –

That takes one back to the two standards to which he referred earlier in the paragraph –

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.

The only stated experience of the witness in his report was what appears immediately following the reference to the “thousand” and it is the passage in brackets, commencing about line 32:

(Only once can I recall actually observing sandstone being dry‑cut in the open air by portable powered angle grinders, at a monument being erected at the entrance to a country town in NSW.

From the evidence it emerged as being Leura in the Blue Mountains.  He then went on to say –

Each of the two operators was enveloped by dense clouds of highly visible fugitive dust, and neither was wearing a respirator of any type!

Your Honours will see that he then added a reference to the respondent working in a tent where it was said that –

the defendant found it necessary to erect a “tent” –

which your Honours will see goes down to about line 47.  That seems to be a reference back to what he had said in his report at page 315 at about line 37:

that about 20 to 30 times each year during the period of his employment he worked within a plastic enclosure or “tent” –

I might say that in the event, to the extent to which it matters, the tent notion appears to have been a shibboleth.  That is apparent from the judge’s reasons in volume 3 at page 583, paragraph 38.  Your Honours, if I could return to page 320 in volume 2 your Honours will see, commencing about line 48, he said:

It should be noted that not all of the dust in the visible clouds being generated by the cutting wheels would be in the “respirable” size range, which means an equivalent aerodynamic diameter (EAD) of below 4 µm.  The actual clouds would consist of particles from about 20 or perhaps 30 µm downwards, as larger ones will settle rapidly by gravity and not remain in the airborne state.  However, a considerable proportion of the size distribution of the suspension would be 4µm and below, and hence would constitute the “respirable” fraction of the dust cloud.

The calculation that the primary judge did appears to have taken into account, in effect, the whole of the dust cloud, as distinct from being the respirable fraction of it in his application to the standard.  Your Honours, if I could just take you back for a moment to the way in which that was dealt with by the judge.  At pages 597 to 598, you will see that he said “A simple calculation”, the first four lines of paragraph 82, and then he goes on to say immediately following:

and Dr Basden’s opinion that during this time he would be exposed to dust concentrations at least 1000 times greater than the permissible limit . . . Accepting for the moment that the P2 mask provided to Mr Hawchar fitted perfectly and provided a protection factor of 50, the concentration of respirable particles within the respirator when cutting was 1000 ÷ 50 x 0.2mg/m³ = 4 mg/m³.

83.      The standard . . . permits the accumulation of 40 hours x 0.2mg/m³ = 8mg/m³.  If a man is exposed for 30 minutes on each of five days to a concentration of 4mg/m³ his cumulative weekly exposure is . . . 10 mg/m³.  The TWA . . . is then . . . 0.25mg/m³.  This exceeds the permissible limit.

Now, your Honours, that seems to be – and I think it right to say – we have not taken this as a separate ground of appeal, although we have referred in our written submissions to the unreliability of the result in that regard - it does seem to be an application by the judge to the dust cloud of the standard as distinct from application to the respirable fraction. 

Your Honours, could I come then to the question of admissibility. In order for Dr Basden’s evidence to be admissible, the requirements of section 79 of the Evidence Act 1995 (NSW) had to be satisfied. Your Honours, may I come first to the place of section 79 in the Evidence Act, and that requires one to look to the provisions preceding it.  If one goes to section 55 first, one sees that section 55(1) says that:

The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally effect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

The practical application of that in broad terms is then seen in section 56, which says that – as both sides of the coin, like some notices of appeal, with respect – in subsection (1), that –

evidence that is relevant . . . is admissible –

and in subsection (2), that –

Evidence that is not relevant . . . is not admissible.

Your Honours, from there, one goes to section 76, which sets out the prescription that –

Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.

Then one sees some exceptions to that in sections 77 and 78 and 78A, and then one comes to section 79, and section 79(1) is the provision of relevance, for present purposes. Your Honours, if one looks at the terms of section 79(1) it means that in order for Dr Basden’s evidence to be admissible it had to appear that the evidence sought to be adduced from him, first of all, was “wholly or substantially”, secondly, based on specialised knowledge, and thirdly, with that specialised knowledge itself being based on his “training, study or experience”. Now, to say that is simply to divide up the provision, but those are the other requirements of it.

Your Honours, may I come to a little more detail about the evidence before going to the application of those matters to the present case?  Your Honours, it is accepted that Dr Basden was a man qualified, indeed well qualified, in certain respects, and your Honours, we refer to that in our written submissions in‑chief at page 6, paragraph 28.  Your Honours will see – if I could go for a moment also to volume 1 of the appeal book at page 88?

GUMMOW J:   Why would the third sentence of your paragraph 28 be determinative in the sense that training, study and experience are alternatives?

MR JACKSON:   I am sorry, your Honour, I just did not catch the last few words?

GUMMOW J:   Training, study and experience are alternatives.  The fourth sentence, I am sorry, of paragraph 28 seems to be focusing upon experience.

MR JACKSON:   Well, your Honour, perhaps if I could put it this way?  We accepted that he had training of particular kinds, we accepted that he had experience of particular kinds, and we accepted he had study of particular kinds, but if one put all those three together it did not, in our submission, amount to anything that would allow him to express the view which he did in the passage I referred to and in other passages to which I will come. 

Now, your Honour, I appreciate that the expression is “training, study or experience” and that in a sense is a reflection of the views that were in being before the enactment of the provision that one did not necessarily have to have an academic qualification in order to express a view.  One could have again an ability to express admissibly a view by experience in particular areas.

GUMMOW J:   And the other way around.

MR JACKSON: Yes, your Honour, yes, it could, but what one does see in section 79(1) is that it is not just a question of saying, does a person have “training, study or experience”, and that then entitles the person to give an opinion; what there has to be is specialised knowledge based on those things and the opinion has to be “wholly or substantially based on that knowledge”.

Now, in dealing with that, your Honour, if one took a lawyer - if I was to say I had appeared 10 times in this Court, as I suspect I have, in matters dealing with the Family Law Act at the same time I am not sure that I would be a competent witness about questions of custody.  Indeed, I am using the wrong word now in saying that, I think.  So, your Honours, it is not a question just of training or study or experience.  It is a matter of identifying the relationship between those things, and the opinion sought to be expressed.  Your Honour, I do not know that I can advance that much beyond what I have just said, but what we go on to say is that it is not ‑ ‑ ‑

GUMMOW J:   This expression “substantially based” suggested the knowledge – sorry, the opinion – may be based partly upon other matters.

MR JACKSON:   That would, not infrequently, be the case because some of the matters on which the opinion is based would be one would expect factual.  Some would be factual in the sense of underlying facts.  Some might well involve the adoption of assumptions made in the opinions of other persons and matters of that kind.  The “wholly or substantially”, your Honour, relates to evidence of the opinion.  The opinion need not be just based on the knowledge. 

It would often take into account various other matters, including particularly a case where, if one took a medical expert giving evidence in relation to a particular specialty, in the ordinary course of events he would not expect every specialist, himself or herself, to take the x‑rays, but would take the x‑rays on which the opinion was based.  The opinion would be substantially based on the view of the medical specialist seeking to give evidence, but that would be in part based on other people’s knowledge, not just the person’s own.

KIEFEL J:   Was there any reference here by Dr Basden as to some accepted understanding that visible clouds of dust have a particular quantity of respirable dust?  The clouds of dust and his understanding about that seem to be the key to his evidence.

MR JACKSON:   Your Honour, can I put it in this way shortly first?  The position is that there was some evidence that he gave that in a cloud of dust there will be a proportion of respirable matter.

KIEFEL J:   You have taken us to that passage?

MR JACKSON:   I do not think I have yet, your Honour, no.  But there will be a proportion of respirable matter. 

KIEFEL J:   Yes.

MR JACKSON:   It does not follow that in whatever the material be, be it iron dust or be it silica dust, that the same weight of material or the same proportion of material, I am sorry, in terms of various ways of describing it will come from every type of dust.  More specifically, there is what is called the “Johannesburg Curve”, your Honour, which is I think in the passage I gave your Honours at page 205.  I took your Honours to page 206 and to the top of page 205.  What one sees in table 2.1 on page 205 is this, that if one looks at the left‑hand side of the table you will see that it has the “equivalent aerodynamic diameter µm” 1, 2, 3 and then the “Respirability”.  The greater the respirability the smaller the particle, hardly surprisingly, your Honours. 

It shows the diameter, or the equivalent diameter, from nought to seven, and it is called a curve as I understand it because if one is looking for a particular diameter between six and seven you find it on a curve, in effect, diagrammatically.  If one looked, for example, at item 5 on the left, the diameter item 5, one sees that 50 per cent of that is respirable; it is just a question of size.  It does not tell you really anything about the weight of the material that comes in.  So that one can say that in any quantity of dust there will be so many microns of a certain size and they are respirable, but I do not know that it goes beyond that, your Honour.

KIEFEL J:   Thank you.

BELL J:   In your paragraph 28 you refer to the circumstance that Dr Basden had not measured the respirable silica dust in the course of his work.  It is just not clear to me from that last exchange whether, if he had experience in measuring dust other than silica dust, that would support an opinion applicable to silica dust.  In other words, is there something distinctive about silica dust?

MR JACKSON:   Well, your Honour, you will see, of course, that the question whether the standard to which I referred has been exceeded is a question of looking at weight per cubic metre and then taken over a period, of course.  So that it does become a question of identifying what the relevant weight is and that is really the crucial issue.  Now, no doubt Dr Basden was able to carry it out, but he had not carried it out, and because of the differences of weights as distinct from the size of a respirable piece it really did not provide any basis for him to express the view which he did, and I was going to come to that in a little more detail in a moment, your Honour, if I may.

GUMMOW J: Well, Mr Jackson, could we just go back to section 79 for a minute? Section 79(1) talks about the opinion rule, does it not?

MR JACKSON:   Yes.

GUMMOW J:   The opinion rule is that indicated in 76(1) I suppose, is it?

MR JACKSON:   Yes.

GUMMOW J:

to prove the existence of a fact about the existence of which the opinion was expressed.

So we need to know what was the task, as it were, which had been set the expert, do we not?

MR JACKSON:   Well, your Honour, one has to know what is the ‑ ‑ ‑

GUMMOW J:   Do we find that from‑ ‑ ‑

MR JACKSON:   What your Honour has put to me is correct, and your Honour Justice Hayne said that in HG v The Queen.

GUMMOW J:   Does that take us to page 316?

MR JACKSON:   Yes.

GUMMOW J:

reasonably foreseeable –

does not seem like a fact, but ii) and iii) I suppose were – there was no challenge but that this expert had been engaged to provide opinions to prove some facts.

MR JACKSON:   No, your Honour.

GUMMOW J:   The conclusions he reached, do we see them at 322?

MR JACKSON:   At page 322, your Honour, yes.

GUMMOW J:   Yes, is that it?

MR JACKSON:   The conclusions are there set out.  You will see at page 321 that you have “Work practices which could have been adopted”, and you will see then the concluding comments, and they relate principally to the respirators that could have been used, disposable respirators and so on, and he then refers to what was used and he also refers to a “wet cutting” mode in the last four lines of that paragraph.

FRENCH CJ:   So the sequence is identify the risk – that is, the risks flowing from exposure to silica dust through inhalation; secondly, the adequacy of various forms of mask or respirator; and, thirdly, what could have been done.  But a step taken along the way is a kind of basis fact, namely what level of concentration of respirable dust was the respondent exposed to, and that is itself expressed as an opinion based on observation of the operation of an angle grinder on a film, and once in a town in New South Wales, and then inferences from that about the exposure to respirable dust.

MR JACKSON: Yes, your Honour. It is clear that the part at page 320 about the 1000 times, et cetera, was a part that was treated as an opinion given by an expert – I appreciate the word “expert” does not appear in section 79 but it is an opinion given by an expert on which the centrepiece of the judge’s reasoning is based.

GUMMOW J:   Now, was there an objection taken to the admission of this report?

MR JACKSON:   Yes, your Honour.

GUMMOW J:   Where do we see that?

MR JACKSON:   Your Honour, it is in volume 1, and the ‑ ‑ ‑

GUMMOW J:   At page 89, there is a commencement of cross‑examination.  There does not seem to have been an objection in the transcript to the tender of it in‑chief.

MR JACKSON:   There is, your Honour.

HAYNE J:   I saw a reference to there being some 80 bases of objection, some enormous ‑ ‑ ‑

CRENNAN J:   Seventy, I think.

HAYNE J:   Seventy, was it.  I was swept away by the numbers.

MR JACKSON:   Your Honour, could I just put it this way.  It was a case where many of the objections were to questions that were being asked by the judge at the hearing – excuse me, your Honours.

GUMMOW J:   Page 82, line 24, Justice Heydon points out.

MR JACKSON:   Yes, and you will see at the bottom of page 108 a submission that the report was “wholly inadmissible”.

GUMMOW J:   Then there was never a clear ruling on this, hence the point made by Justice Allsop in the Court of Appeal.

MR JACKSON:   Yes, your Honour, it is undesirable.  One accepts that they are not there ruling on the issue, but the absence of ruling appears to have been subsumed in the fact that the evidence was actually relied upon by the judge.  But page 82, as your Honour has mentioned, is the place at which the objection is first attacked.  I think there may be an earlier reference to it too, your Honour, but if I can find that reference I will give it to your Honour.

FRENCH CJ:   Did Dr Basden rely at all upon the fact that the respondent suffered from silicosis?

MR JACKSON:   Your Honour, I do not know that it is correct to say that he relied on the fact that he suffered from silicosis.  I do not think that was really in question in the proceedings.  The question was rather one of relationship between the ‑ ‑ ‑

FRENCH CJ:   As a basis for supporting the inference that he had been exposed to respirable dust?

MR JACKSON:   Not Dr Basden I do not think, your Honour.  I think it was to be found in the ‑ ‑ ‑

CRENNAN J:   Dr Henderson, I think.

FRENCH CJ:   Yes, Dr Henderson gave evidence.  I am just trying to get clear in my own mind what one might call the basis facts upon which Basden proceeded?

MR JACKSON:   Your Honour, I do not think it is right to say that Dr Basden based himself on that.  His evidence was relevantly self‑contained, if I can put it that way.

CRENNAN J:   Mr Jackson, the figure in paragraph 82 of the primary judge’s decision I think referred to as the centrepiece in the sense of his reasoning, that is the reference to:

Dr Basden’s opinion that during this time he would be exposed to dust concentrations at least 1000 times greater than the permissible limit –

was that controverted at all by competing evidence or was it undermined in cross‑examination at some point?

MR JACKSON:   Yes, your Honour, it was the latter.

CRENNAN J:   And you will come to that?

MR JACKSON:   Yes I am, your Honour, yes.  The latter, I think, rather than the former and that is a matter to which I will come.  Your Honours, could I just say this?  It was apparent that there could be measurements of dust.  You will see that referred to in Dr Basden’s evidence at page 91 in volume 1, lines 35 to 53.  It is a passage in which he said he knew how to measure respirable fractions and he agreed there was a “sampling device”.  That is about line 39 and, your Honours, that goes on to, I think, about line 50 on the page.  But you will see that he was not able to give evidence himself of having done that.  You will see at page 92, about lines 25 to 30 that he was asked:

Q.Have you any experience in measuring the respirable fractions of ground sandstone.

A.I don’t necessarily agree on sandstone your Honour, but certainly the respirable fractions of a number of dusts, probably silica would have been amongst them – all over the place, I’ve mentioned concrete batching plants that are crushing station for road metal up along the Nepean River somewhere.  There were so many places, I can’t really remember them all.

Your Honours will see the next sentence of that answer.  Also, your Honours, on the same page, about line 52, he referred to the fact that every time he had seen sandstone being cut, it –

was all done with wet cutting and this struck me – actually, it was the entrance to Leura Mall –

That appears to be the one occasion he was speaking of and, your Honours, the passage follows on.  At the top of page 93, and down to line 15 he referred:

Q.You referred to the actual observation that you had made of dry cutting, did you wish to demonstrate that you had had at least that experience of sandstone being cut, correct.

A.Yes –

He said in the next answer that –

If it was prominently in mind I would have, if it was relevant –

if he had other experience that would have enabled him to make an accurate assessment of the amount of silica which would be liberated by a dry‑cutting process he would have referred to it in his report.  He said in the answer, about line 24 that he could not think offhand of any other occasion when he had had experience of –

seeing a dry cutting process which liberates silica –

At about line 27, he said that he had –

never measured the atmospheric concentration of silica or the respirable fraction of silica as a result of a dry cutting process –

and he would have referred to it in his report if he had.  You will see then, your Honours, that he also said that he was not offering an opinion that the respondent’s exposure to respirable silica had exceeded a particular value.  You will see that, if I could move over to page 108, in the passage at about line 25 on the page – perhaps I should commence at about line 10.  He was asked:

Q.Are you expressing a numerical opinion about what the time weighted average of Mr Hawchar’s exposure to respirable silica was when he was at Dasreef.   A           I don’t recall saying or giving a figure.

Q.Are you saying that in your opinion during the time he was with Dasreef he inhaled respirable silica at concentrations which exceeded a particular number –

He said he did not claim to.  He agreed he did not claim to have the expertise to allow him to say that.  Your Honours, if I could go to about line 25, he was asked –

I am just asking about whether we can express a numerical opinion about Mr Hawchar’s exposure to respirable silica.  Now, for absolute clarity you do not claim to be able to express such an opinion based on specialised knowledge that you perceive you have, correct.   A   No.

He was agreeing with that, and he said at about line 40 on the page that he agreed that he would not claim he had –

the ability to express an opinion to this Tribunal about the amount of dust Mr Hawchar would have inhaled during his time with Dasreef –

and your Honours will see the next question and answer ‑ ‑ ‑

GUMMOW J:   Was he challenged on his conclusion at page 322, the last sentence? 

MR JACKSON:   Your Honour, I think the answer is yes.  May I give your Honour a reference in just a moment.  If one goes to page 109 in the passage commencing line 18 on the page he was asked whether he was in a position to say:

based on specialised knowledge based on your study, training or experience –

a phrase which I think comes from section 79(1) –

what the concentration of respirable silica would have been in Mr Hawchar’s breathing zone when he was cutting stone with an angle grinder at Dasreef.

A.       That’s correct.

He also answered “That’s correct” to the next question:

Nor would you be in a position to express an opinion based on your study, training or experience on the amount of respirable silica that Mr Hawchar would have inhaled had he been working in the tent which you were asked to assume he was working in when working for Dasreef –

Then your Honours will see the question and answer at line 29 through to about lines 30 to 34.  Your Honours, if one goes to about line 40 on the page the judge asked:

Could a range be given –

The actual figure, he said, could not be given and the witness said:

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

Then, your Honours, the next two questions and answers by Mr Parker:

One of the reasons for the inability to quantify in any precise way is because generally speaking it is the larger particles which are visible.   A   That’s correct, yes.

Q.       The question that I asked you concerned respirable silica and that generally tends to be smaller and therefore invisible to the naked eye.   A   Quite true, yes.

Your Honours, the dust that he had been speaking about in his report appeared to be the whole of the dust cloud.  Could I, in that regard, go back to page 320 in volume 2 and your Honours will see, commencing about line 48, a passage to which I referred earlier and going to the end of that page where he said:

not all of the dust in the visible clouds . . . would be in the “respirable” size range –

and he elaborated upon that through the remainder of that paragraph.  In his oral evidence at page 117, about line 50 on the page, he was being asked about that passage and he said – asked about actual dust per cubic metre as to the opinion he had expressed and he said:

It’s just a subjective comparison with dust measurements that have been made and what was observed.  As I mentioned earlier, 10 milligrams of dust in a cubic metre would be virtually invisible except there are large –

probably some particles, your Honours –

that might just show up.  Now that was 10 milligrams, not a half to 2 micrograms.  The video showed the clouds of dust, just as the sample that I witnessed at entrance to Leura Mall some years ago made clouds of dust which would be extensively in excess of that.

Also, page 118 you will see at about line 43:

You were expressing the opinion that the level of dust in that cloud of dust produced by the grinder during the time that the grinder was operating would have greatly exceeded the level of point 2 milligrams per cubic metre.   A   Yes.

Q.       But you were not seeking to be precise as to where it would have exceeded it by five times or 500 times. 

Your Honours will see the answer that goes on there which I will not read out.  Your Honours, if I could go to our submissions in reply in a moment at page 3, paragraph 12 we refer to this issue there and I will give your Honours a reference to that without going to the detail of it.

Now, if one goes back then to the terms of section 79 the relevant opinion, in our submission, was that the level in the standard was exceeded. That was what was being said in that passage. I mentioned a moment ago that your Honour Justice Hayne observed in passing, as it were, with respect, in HG v The Queen (1999) 197 CLR 414 at 454 about point 3 – it is the sixth line on the page:

Thirdly, whether the opinion that is expressed is, in the words of s 79 of the Evidence Act, “wholly or substantially based on” specialised knowledge that the witness has, is a question that may depend greatly on what opinion is being expressed.

GUMMOW J:   What was the occasion of the debate in HG?

MR JACKSON:   Your Honour, the occasion for debate in HG was in relation to the omission of evidence that – your Honours will see in the last paragraph of the headnote on the first page of the case:

A man was charged with two counts of sexual intercourse with a child under the age of ten years . . . He was also charged . . . with indecent assault.

One sees then that the debate about the evidence - there was a Mr McCombie, your Honour, who was a witness whose evidence was to be called to support the theory that she had been assaulted by the father and not by the appellant.  I have just forgotten what qualification he asserted, but that was the nature of the evidence that was being sought to be adduced.  He was a psychologist, I think.

GUMMOW J:   There is an error in the headnote, by the way, when it refers to Justice Gaudron and myself.  It says:

Evidence that another person had sexually assaulted the complainant . . . was inadmissible –

“and” should not have been there.

MR JACKSON:   But, your Honours, I was referring to that for the moment just to indicate that the answer to the question depends on what the question is, as it were.  Your Honours, in our submission, the opinion here was whether the respirable fraction inhaled would exceed, on the time‑weighted average, the 0.2 milligrams per cubic metre.  There was no point in the opinion, with respect, unless it related back to the time‑weighted average.  He was not talking about a measurement and, in our submission, your Honours, there was nothing which was exposed in his training or study or experience to show that he had gained the specialised knowledge to express the opinion which he did.           Could I refer your Honours in this regard also to our submissions in reply commencing at page 2, paragraphs 7 to 15? 

Your Honours, could I go then to the decision of the Court of Appeal in Makita v Sprowles (2001) 52 NSWLR 705 and to the decisions in relation to that topic? In that case your Honour Justice Heydon discussed at some length the requirements for admissibility of expert evidence and, as appears from page 742, paragraph 83 the case was one where section 79 of the Evidence Act was in consideration.  Your Honour then set out, in paragraph 85, a summary of the views that your Honour expressed on the topic.             Your Honours, if I could say this.  The central parts of the reasoning for present purposes appear to be at page 744, commencing at about point 2 on the page.  Your Honour said in that regard that:

the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached:  that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded.

Then your Honour observed that if that is not done, the court cannot be sure – your Honours, the use of the term “sure” has been criticised on perhaps at least one occasion, but one suspects that in the light of the provisions of the Act, your Honour simply meant satisfied as distinct from some greater level of satisfaction.  Your Honours, I said “in the light of the provisions of the Act”.  I will come to what I mean by that in just a moment –

it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge.

Your Honour then went on to say what really is the corollary of what I have just said, namely that an attempt to make the basis of the opinion explicit may show that it does not satisfy the requirement that it be based on the expert’s specialised knowledge.  Your Honours, the requirement that it be wholly or substantially based is one of some importance, and could I in that regard take your Honours to our submissions in‑chief, page 7, paragraph 34, and apart from the introductory sentence, what we seek to say is that a requirement of “wholly or substantially based” performs an important function of guarding against a spurious air of authority being accorded to the views of a witness who, although possessing expertise in a general sense, has not in fact brought specialised knowledge to bear in expressing the opinion.

Your Honours, in our submission, that looks very much like this case, and your Honours will see the last sentence of paragraph 34, to which we would also refer.  But, in our submission, what we referred to in paragraph 35 of those submissions is also correct.  It is part of the same proposition, really, that it is for the proponent of the evidence to satisfy the court that the opinion is actually so based and the court could rarely be satisfied that that was the case, if there had not been disclosure of how the asserted conclusion flows from the assumed facts and how the specialised knowledge allows one to arrive at that conclusion.

GUMMOW J:   Now, the objection here at page 82 was to all of the opinions expressed by this witness.  You just challenge one of them, do you not?

MR JACKSON:   Well, your Honour, as the matter has developed, as it were, it was this opinion which was the critical one in the primary judge’s view.  It was the thing on which he principally based his decision.  Your Honour, I think it is right to say we did challenge it all, but as the matter has developed what was relied on by the judge was the passage to which I have been referring and that is why the argument has been developed as it is.

FRENCH CJ:   That is the opinion as formulated in the first ground of your appeal?

MR JACKSON: That is so, your Honour, yes. Your Honours, section 142 of the Evidence Act is the provision that says that the balance of probabilities test – it is 142(1), and in particular (1)(a) – it is the provision that says that the balance of probabilities test is to be applied where the court has to decide “whether evidence should be admitted or not admitted”.  Your Honours, there is also, of course ‑ ‑ ‑

HEYDON J: Mr Jackson, I am not sure that there is any question of finding of fact in relation to section 79(1). What we are talking about is really a question of the form in which evidence is expressed.

MR JACKSON: Well, your Honour, section 142 is a provision that is of general application, so far as it applies to the question of admission of evidence. Now, so far as the particular issue of section 79 is concerned, it is unlikely that such a finding of fact question would arise here.

HEYDON J:   It might arise if someone said they were a graduate of the Harvard Medical School and they were not, but what we are debating in this particular case is a question of the form in which evidence should be expressed.

MR JACKSON:   Yes, your Honour, yes, that is so.  Your Honours, we wanted to refer also to the issue of unfairness, which is the ‑ ‑ ‑

HAYNE J:   Sorry, can I just go back to 142?  Would not 142 be engaged had there been a separate ruling at the end of the voir dire?  Would not the judge have had to – to use a neutral term – made a determination of the training, study or experience that the witness had which bore upon the opinion expressed?

MR JACKSON: Your Honour, that is so, I think. If one is talking about – as I said before section 142(1)(a) clearly applies in terms to questions of admissibility of evidence, and insofar as there is some issue arising in the resolution of that, which is the resolution of a termination of a fact necessary for that decision, to use the words of 142(1), that would be so, and in the present case, if the judge had given a distinct ruling on the issue of admissibility, it may well be that there were some points on the way that might involve a factual issue on which the burden would lie on the present respondent.

HAYNE J:   Depending, in effect, on the nature of the issue joined in the voir dire.

MR JACKSON:   Of course, your Honour, yes.  Your Honour, I am going to come in a moment to, for example, provisions of the Act that allow parties not to take points, in effect, so that connects with what your Honour was saying about issue joined, as it were.  Your Honours, I was going to refer to the question of unfairness, and that is a matter to which we have referred in paragraph 36 of our submissions in‑chief.  One is put in a position where one lets the evidence in and hopes that the Tribunal of fact will give it no weight, or embarks on a cross‑examination in the dark. 

Your Honours, that was an issue which was adverted to, particularly when special leave was being sought in Makita itself.  I think your Honours should have a copy of  – I just wanted to refer to two passages in that special leave application in Makita  – I am sorry, your Honours, I thought the Court had a copy of that, but may I just give your Honours a reference, and I will not dwell long on a special leave application, but could I just say that the relevant reference – it is the transcript of proceedings on 31 May 2002.  It is S242/2001, heard by Chief Justice Gleeson and Justice Callinan, and there are two passages where Justice Callinan makes the observation – one of them being, your Honours, at lines 165 through to 175:

No, not at all.  The other side might take the view that the material just is not sufficiently probative to worry about and decide to leave it alone entirely.

Similarly, your Honours, at lines 324 to 328, his Honour said –

No, it is not necessarily so at all.  The defendant, on the other side, takes the chance that it lacks any probative value or it is so inherently contradictory that he or she does not have to worry about it.  It may be a risky thing to do, but the fact that no objection is taken does not elevate the report to such a position as requires a judge to accept it.

Now, your Honours, the issue of unfairness is also an issue which arises as a practical matter.  It arose recently – when I say recently, I meant August last year, in a decision by Justice McDougall in the New South Wales Supreme Court in Assafiri v Shell Company of Australia Ltd 18 August 2010 and the case number is 2007/266565.  Your Honours will see, it is a very short judgment relevantly.  You will see in paragraph 2 the objection as to expertise.  You will see at paragraph 3:

want of any demonstration of an intellectual basis for, or methodology employed to reach, the conclusions –

The judge said –

those objections are well founded –

paragraph 3.  You will see that his Honour referred to there being a:

debate as to whether demonstration of a logical chain of reasoning based on the application of expertise . . . is a condition of validity or a question of weight –

But then he said in paragraph 5:

To admit the report would put the defendant’s counsel to the task of cross‑examining in an attempt to impeach the conclusions expressed, without knowing how those conclusions were reached.  There is a very real risk that, in that process, the conclusions might be shown to be supported by some appropriate chain of reasoning.

Your Honours will see the remainder of the paragraph which he there set out and he rejected the affidavit.  Your Honours, I do not refer to that rather than to say this is a practical issue which does arise. 

Your Honours, I referred a moment ago to paragraph 36 of our submissions in-chief at page 8 where we say that the situation in the present case was exacerbated by treating us as having an onus to adduce evidence to the contrary.  You will see that in the Court of Appeal’s reasons in paragraph 43 at page 675 where it was said:

But it was then for someone qualified as an expert to say that his estimate was worthless, or of little weight, or for some other reason unreliable.

KIEFEL J:   What is wrong with that, though, in the sense that it is something about which another expert could give evidence and put the matter beyond doubt, I suppose.  Your complaint is that it is shifting an onus?

MR JACKSON:   Your Honour, the situation that we had was that we had a plaintiff who bore, of course, the ultimate burden of proof seeking to adduce evidence from a witness and the point we would seek to make about it is that that evidence, the admissibility of that evidence was to be considered on its own merits.  There was no reason why we had to adduce evidence to demonstrate that there was a sufficient basis for that opinion.  Now, if the opinion in the end goes into evidence then, of course, it is a matter for which one might say well, that is a matter on which you could call evidence if you chose.

KIEFEL J:   In many cases that course is necessary, that is to call an expert to say that this is not a matter about which experience and an understanding of concentrations of dust particles over a long period of time qualifies an answer.  This is a case where there is need to have a scientific measurement.  That does not mean that the expert called to contest the other’s expertise then has to go into evidence and produce the measurements, but in many cases there is a need to use an expert to challenge the expertise of another because the tribunal of fact lacks that essential knowledge.  So what sets this case apart?

MR JACKSON:   Your Honour, we would say this is the ordinary, rather than the unusual case and, with respect, what your Honour was putting to me was the unusual, rather than the usual.  It may be that in an appropriate case one can adduce evidence to show that this is (a) not a matter on which the expert evidence, to put it shortly, is really expert evidence, or to show that the person is not sufficiently qualified or something along those lines.

KIEFEL J:   You are suggesting there is a minimum standard and that in this case the minimum standard of the basis for expert opinion was simply not provided?

MR JACKSON:   Yes.  The case did not get to the point really where it was for us to adduce evidence.

KIEFEL J:   Yes, I understand.

MR JACKSON:   Your Honours, could I refer then to the ‑ ‑ ‑

HAYNE J:   Mr Jackson, there may be two aspects of this point which I will characterise as the ipse dixit point.  If a witness, professing to be an expert, essays an opinion it is necessary to consider how the opposite party may react to it, but it is also necessary, I would have thought, to consider how the judge is to deal with it in his or her reasoning.  Is it going to be satisfactory for the judge to say I accept the evidence of witness X because witness X said it was so?  Expressed in those terms the reasoning is at least opaque.

MR JACKSON:   Somewhat dusty, your Honour.

HAYNE J:   I was not going there, Mr Jackson.

MR JACKSON: Yes, that is so, your Honour, yes. To adopt a course of that kind does not, in our submission, seem to accord with the way in which section 79(1) is framed because section 79(1) uses language that reflects, first of all, upon the need for one of the three qualifications - study, experience and so on. It then speaks of “specialised knowledge based on” those things and it then speaks of –

an opinion of that person that is wholly or substantially based on that knowledge.

Now, your Honours, in saying those things it is not saying, for example, that a person may give evidence based on the person’s training or study or experience. It adopts rather more restrictive criteria, and in doing that carries with it, in our submission, the notion that there needs to be exposed the reasoning for the conclusion, a reasoning which is necessary because it derives from the terms of section 79(1), and a reasoning which satisfies the terms of section 79(1). Sometimes it would be very easy to do that, sometimes not so easy, depending on the particular case.

Your Honours, to go back to what your Honour Justice Hayne was asking me, at the end of the day the judge finding a fact based on that evidence would need to be satisfied, in our submission, not just that the conditions of admissibility had been met but that weight should be attributed to that evidence.  In dealing with that question one would ordinarily, as the judge, want to see a relationship between the study, experience and so on, on the one hand, and the opinion that was being expressed, and with, of course, the specialised knowledge in the middle of it.

HAYNE J:   At least in a case where the question was a question of measurement as distinct from a question of relationship of cause and effect, as is the commonplace of medical evidence.

MR JACKSON:   Yes.

BELL J:   It was a question of measurement with respect to that part of the case that concerned the falling short of the standard.  There was, I think – at least the Court of Appeal concluded – a wider case being run too but his Honour did not seem to concentrate on the wider case.  Is that so?

MR JACKSON:   No, the ‑ ‑ ‑

BELL J:   One may be critical of the use that his Honour made of Dr Basden’s opinion at paragraph 14 of the report at paragraph 82 of his Honour’s reasons for the reasons that you advance in your reply, Mr Jackson, but coming back to your primary submissions at 28 and 29, a deal of those goes to criticism of the absence of the intellectual basis, or indeed for that matter of the witness’ study, training or experience with respect to silica dust.  As I read paragraph 14 of the report what is being expressed is a less ambitious opinion, it is an opinion that, “dust concentrations generated in” the respondent’s “breathing zone”, and I take that to be a reference to an assumption made based on viewing the video where one could see ‑ ‑ ‑

MR JACKSON:   Well, with respect, the witness had not seen the video at that point.

BELL J:   I see.

MR JACKSON:   It is based on a photograph.

MR BELL:   Based on a photograph.  So, in any event, it is an opinion based on, as I understand it, some visible quantity of dust surrounding the respondent’s breathing zone, and the opinion that is expressed is that the dust concentrations “would be of the order of a thousand or more times”, “half to two ten‑thousandths of a gram”, “even approaching one gram”.  Then the author goes on to point out that:

not all of the dust in the visible clouds . . . would be in the “respirable” size range –

and he expresses another opinion about the proportion of the particles that would be in that range.  Now, that may not support the conclusion that the primary judge came to and the calculations that he advanced in relation to that part of the case that concerned a precise measurement for the purpose of the standard, but is it said that a person with Dr Basden’s training, experience and study was not capable of expressing an opinion that if one sees a visible cloud of dust it would be realistic to think that the concentrations in the breathing zone would be of the order that he posited?

MR JACKSON:   In our submission, yes, your Honour, because if one is looking at his qualifications, study and experience, first of all, his experience, he had seen it once when the monument was being erected.  He had seen a photograph of someone using an angle grinder and then that was that.  Now, looking at those two things - and one is talking about a question of – not a question of saying a lot of dust came out of the angle grinder at the time it was being used.  What he is saying is that it was of a particular scale.  He had never seen it before except in the instance to which I have referred.  That is the experience part of it.

So far as the study was concerned nothing really emerged to demonstrate, in our submission, that he had any academic qualification - I am not talking about formal qualifications - to say that there was in any of these emissions a particular quantity that did or did not exceed a particular amount.  Your Honours, his study, qualifications and experience did not seem to indicate that at all.  Your Honour, when he was cross-examined about it on the voir dire he admitted all those things because what he had done was he had expressed a view in a very round fashion, very round, that is why I said it is somewhat startling to read it.  But when one sees the evidence that he gave he really did purport to be doing what he, in effect, said he was doing.  I am sorry, your Honour, I am putting it badly.

GUMMOW J:   What he was doing was dealing with point 2 in his brief at 316, namely, what procedures the employer may have taken.  Paragraph 14 leads to 15, namely, unsuitable respirator, when there were other respirators on the market that would have been efficacious, that, in turn, leading to the conclusion at page 17 as to the inadequacy of the types of respirator supplied to the plaintiff.

MR JACKSON:   Yes, your Honour.  That is the course of events he was dealing with but on the way he was expressing the opinion that one sees in the middle of page 320 and that opinion is one that leads to his conclusion and, of course, in the particular case led to the judge’s view ‑ ‑ ‑

CRENNAN J:   He explains all this at 118 at lines 38 onwards.

MR JACKSON:   I am sorry, your Honour was looking at?

CRENNAN J:   Page 118, he explains exactly what Justice Gummow was referring to in the report and the connection between his opinion about the cloud of dust - at 118 lines 38 onwards.  It gives an answer there:

There would have been in those clouds that I witnessed at that time something of the order of a faction of a gram, point something of a gram, not point 0‑something or other, or point double 00‑something of a gram.

So that is what he is saying to justify his opinion based on the visibility of the cloud of dust, as I understand it anyway.

MR JACKSON:   Yes, your Honour, without a doubt, that is what he is saying.

CRENNAN J:   He has done that because he is recommending a “protection factor of about a thousand for the use of a VAPR respirator”.  That was the purpose of the figure.

MR JACKSON:   Yes, but, your Honour, then that figure is one that is taken into account in arriving at the conclusion that the respirator was not satisfactory and when I say that, the judge’s conclusion that the respirators were not satisfactory.

FRENCH CJ:   The underlying premise of the exchange in the passage Justice Crennan took you to is that they are talking about respirable dust particles because they are putting it in the context of the standard, but in his report at 320, at paragraph 14, in the last sentence he says:

a considerable proportion of the size distribution of the suspension would be 4µm and below, and hence would constitute the “respirable” fraction of the dust cloud.

But he does not purport to quantify that even though earlier it seems as though he is talking about the concentration of what can be seen by reference to the standard.  There seems to be a bit of elision between what is respirable and what is visible, and to which the standard applies.

MR JACKSON:   Yes, your Honour, the standard applied to respirable.

FRENCH CJ:   Yes, I appreciate that, yes, I am just saying the way it is presented.

MR JACKSON:   Yes, quite, your Honour, quite, and that is a matter, of course, that was gone into in the cross‑examination of him on the evidence on the voir dire.  But the point about it is that when he expresses the opinion in the middle of paragraph 320, he is speaking about something by reference to the terms of the standard, and it is ‑ ‑ ‑

KIEFEL J:   The expert’s report, in the way it was structured, seemed to take the path of establishing a breach of a duty and causation to silicosis by reference to the equipment which was provided.  Was that a path through compensation itself sufficiently open, or was it essential that the primary judge find the concentrations of silica passed the regulated amount on the path?

MR JACKSON:   Your Honour, if I could perhaps start one stage back, in effect.

KIEFEL J:   What was necessary to prove, really.

MR JACKSON:   There is, as we referred to in our written submissions, a provision, which I think is regulation 51 of the appropriate work safe regulations that said that this standard was to be applied.

KIEFEL J:   But that would be without more a breach of duty.  But was there an alternative path, this is what I am asking?

MR JACKSON:   It is right to say, I think, your Honours, that the way in which the case is contended for by the respondent was one in which they sought to rely on a common law breach of duty, meaning by that that there was, in some respects, a failure by the employer to take satisfactory care for the worker.  But in the – and this is the anterior matter I was going to go to – this is a case where silicosis as a not unknown consequence of exposure to silica dust.  If one is working in an area where silica dust is something that emerges from the nature of the work there is the possibility of acquiring silicosis. 

Now, the case for the respondent, in terms of the way in which the case was conducted, amounted, in our submission, to effectively the way in which the trial judge dealt with it.  By that I mean that the case was one in which the standard was referred to.  You had the evidence of Dr Basden, which indicated at the page we have been to, page 320 and there were other events referred to as ones which might give rise to some circumstances where one might inhale silica dust.

I think I took your Honours at the start of the appeal to the few paragraphs in the primary judge’s judgment where he said it is not just the use of the angle grinder, there was this and this and this, including at the end the specialised tribunal issue.  But if one is looking to see why, apart from exceeding the terms of the standard, there would be a finding of negligence, it is a failure to take proper care.  It is difficult, in our submission, to see that the evidence would demonstrate that.

KIEFEL J:   It is just that the expert’s report appears not to be concerned to establish simply the exposure to more than the prescribed quantity of silica.  It seems to really be to establish that this was a risk which required to be guarded against and to guard against it required other measures or simply could not be guarded against, but it did not depend simply upon the fact of exposure.  But perhaps I have misunderstood what the case below was.

MR JACKSON:   Your Honour, the work is carried out in circumstances where sometimes a respirator or mask is used.  Sometimes it was not used.

KIEFEL J:   Or they used water to damp down, but he was concentrating on the respirator.

MR JACKSON:   Yes, he was concentrating on that, although he did also refer somewhere, I think, to the use of “wet cutting”.  It is the end of page 322, last four lines.  But the respirators are ‑ ‑ ‑

KIEFEL J:   I am sorry to interrupt you, but his ultimate conclusion was that if wet cutting had been employed together with an appropriate type of respirator, it is almost certain he would have suffered no injury.

MR JACKSON:   Your Honour, the appropriate type of respirator is itself dependent on the concentration.

GUMMOW J:   Within a range.

MR JACKSON:   Within a range, yes, and I think there were three types of respirators involved, and that whichever one would be appropriate would be the one that satisfied the time weighted average concentration requirement.

HAYNE J:   Well, Mr Jackson, if the fact sought to be established by the tender of the opinion was the inadequacy of work practices, whether by reason of failure to supply a satisfactory respirator, or failure to adopt wet‑cutting methods, was that opinion evidence to be admitted if a necessary intermediate fact to the expression of the opinion was the level of respirable dust to which the worker was exposed – whether expressed as a range or absolutely – if the opinion giver did not himself have a sufficient founding and training, study or experience to express a view about the level of respirable dust?

MR JACKSON:   Your Honour, the answer is no in the absence of there being other evidence which would establish that intermediate opinion.  Your Honours, I was going to go to the observations of the Full Court of the Federal Court in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354. That case sets out a number of considerations germane to the issue. The relevant part ‑ ‑ ‑

GUMMOW J:   What was the field of expertise supposed to be in this case?

MR JACKSON:   In that case, your Honour, the expertise was in relation to marketing.  You will see paragraph [6] at page 356.  What was referred to was that the evidence –

was received at trial without objection . . . inadmissible or ought not to have been accorded weight –

There is then set out the passage from your Honour Justice Heydon’s reasons in Makita v Sprowles and the observation is made at paragraph [7] at the bottom of page 356 that that is –

to be understood as a counsel of perfection.

Your Honours, there is nothing wrong with that really, is there, with respect?  Then one sees on page 357 a number of considerations and, your Honours, in particular, if I can just stay with paragraph 7, it sets out some reasons why, or it commences to deal with some reasons why the Makita approach may not be able to be adopted in a trial.  Your Honours, they are set out really in paragraphs [8], [9] and [10].  May I deal with each of those.  In paragraph [8], it is said that:

where evidence is adduced from an expert without objection, the trial judge will ordinarily be entitled to assume that all matters crucial to the admissibility of the evidence are conceded by the opposing party, including the existence of a relevant field of specialised knowledge.

That is elaborated upon through the last two sentences of that paragraph.  That possibility, one is talking actually about the Evidence Act and that possibility, namely that the parties may agree is itself something recognised by the Evidence Act.  One can see that from section 190 and it says in (1):

The court may, if the parties consent, by order dispense with application of any one or more of the provisions of -

and your Honours will see the relevant parts there referred to.

FRENCH CJ:   The court still retains control of the question of admissibility.

MR JACKSON:   Of course, your Honour, yes.  You will see then a reference in subsection (2) to criminal proceedings.  You will see in subsection (3) that the court may order in civil proceedings that any one or more of the provisions do not apply.  Your Honours will see, if I just go back to subsection (1), that as your Honour the Chief Justice put to me, the court does retain some control because of the use of the word “may” in the opening parts of it, but in the ordinary course of events the issue raised by paragraph [8] of the Red Bull decision is one dealt with by that provision.  Your Honours, if one goes to paragraph [9] of the Red Bull decision at page 357:

any ruling on the admissibility of evidence is ordinarily required to be made by the trial judge during the course of the trial rather than at its conclusion.

There is then an observation about the relative position of the Court of Appeal and the trial judge, and then one sees:

The trial judge’s ruling will be based on the evidence and other relevant material, which may include assurance given by counsel –

and so on.  There is a reference to the absence of a voir dire about line 23, and then your Honours will see the remainder of that paragraph.  Could we just say this, your Honours?  There is provision for a voir dire under the Evidence Act; you will see that in section 189, and in particular section 189(1) says that:

If the determination of a question whether:

(a)evidence should be admitted . . . 

depends on the court finding that a particular fact exists, the question whether that fact exists is, for the purpose of this section, a preliminary question.

There are references in subsection (2) to the position of a jury, your Honours, so that is the first thing; there is provision for voir dire to take place in the Evidence Act cases.  The second thing is, your Honours, that you will see the reference to preliminary hearing.  There is provision in the Evidence Act, or there is now provision in the Evidence Act since I think 2007, in section 192A for advance rulings and findings.

Could I just say this, your Honours?  In addition to that provision, in criminal proceedings in New South Wales, which is the Evidence Act presently in question, section 139 of the Criminal Procedure Act 1986 provides for pre‑trial hearings, including as section 139(3) says, those which seek rulings under section 192A, which includes, of course, admissibility of evidence.

Thirdly, your Honours, evidence, when admitted, is in the sense to which I will come, admitted provisionally.  A jury can be told in appropriate cases to disregard it if in the event it was not properly admitted, or it can be struck from the record, and so far as the Evidence Act is concerned, section 57(1) provides for there to be in effect rulings which are subject to change later, and, your Honours, the ‑ ‑ ‑

GUMMOW J:   You are taking us to the joint reasons in Red Bull?

MR JACKSON:   I am sorry, your Honour?

GUMMOW J:   Is there anything in the joint reasons in Red Bull?

MR JACKSON:   Well, your Honour, the joint reasons, and I am just trying to give your Honour the references ‑ at page 379, paragraph [87], your Honour, it is said, I think about line 17:

many of those qualities involve questions o degree, requiring the exercise of judgment.  For this reason it would be very rare indeed for a court at first instance to reach a decision . . . satisfied all of his Honour requirements before receiving it as evidence in the proceedings.

GUMMOW J:   Do they deal with Mr Bannon’s submission in the first sentence of paragraph [81], namely that this so‑called expertise did not expertise did not go to any fact, but it went to the issue of law that the judge was obliged to determine?  I cannot find it.

MR JACKSON:   I thought, your Honour, there was a reference to the section of the Act that said that in some circumstances that might be done.

GUMMOW J:   Anyhow, do not stay to get into it now.

MR JACKSON:   Your Honours, I think that the paragraph to which I took your Honour is fundamentally the way in which that was dealt with.  Then their Honours say at about line 23 on page 379, that:

The various qualities described by [your Honour] are then assessed in the course of determining the weight to be given to the evidence.

Now, your Honours, the situation is that if there is an objection to evidence of an expert nature, an objection based on non‑satisfaction of the requirements of section 79(1), that is an issue which is likely to be of some significance in the trial. It may, in the end, be a peripheral matter; it may in the end turn out to be just no more than a question of weight, but if a serious objection is an objection taken seriously, then the objection should be dealt with.

Not every trial can be satisfactorily compressed and, your Honours, if one has a situation – and a judge may be able to say in some circumstances, “Well, I will deal with this at the end, and if I decide it is inadmissible then I will not give any weight to it, but it does cause difficulties”, and one of the difficulties being what does the other side do?  It does bring about a situation, your Honours, where there can be elements of significant unfairness in it.

The views expressed in Red Bull, in our submission, may make things a little more convenient for courts when dealing with trials, with respect, but at the same time they carry with them their own difficulties, in our submission.  Objections to evidence really are important matters in trials. 

Your Honours, I was going to say also in relation to what I have been referring to earlier as the provisional admission of evidence and I use that as a convenient term, we have given your Honours a copy of an extract from the eighth Australian edition of Cross on Evidence and, in particular, paragraph [1880].  Your Honours will see that it sets out a number of ways in which there may be evidence wrongly admitted or it turns out to be wrongly admitted and how it can be dealt with.  Your Honours will see the first sentence and then the issue raised in the second sentence and then in the second paragraph under that heading:

One solution to the problem of wrongly received evidence is to “strike it out” or “withdraw” it –

That is elaborated upon –

A second solution is to take the first course, but also to tell the jury that the evidence has been withdrawn, or that it should be disregarded.

Thirdly, in certain circumstances it may be that “something more [is] needed as a matter of common fair play than a mere formal and frigid withdrawal of the evidence” -

is appropriate.  On the next page –

A fourth solution is to exercise the court’s discretion to discharge the jury –

and that is discussed in that paragraph.  The point I would seek to make about it, your Honours, is that when evidence is in it sometimes says it is in for all purposes or what used to be termed, it is in for all purposes.  But, your Honours, sometimes things that are in can also be taken out.  That is the point I seek to make.

Your Honours, in relation to paragraph 10 of Red Bull which is at page 354 there is a reference there to the fact that the Law Reform Commission, when recommending the enactment that became the Evidence Act, had abolished or recommended against the incorporation of what was described as the basis rule and if one goes to what the Law Reform Commission has said and your Honours should have volume 1 of that document or an extract from volume 1, the relevant part of it is at the end, your Honours, on page 417 where what was described as “The Basis Rule”, at paragraph 750:

It has been implied in some cases and asserted in some academic writing that there is a rule of evidence that for expert opinion testimony to be admissible it must have as its basis admitted evidence.

That is rather different from what is, with respect, set out in their Honours’ observations in Makita and, in that regard, could we refer also to our submissions in reply, page 8, paragraph 38.  Your Honours, to put it shortly, our submission is that the approach taken in Makita was correct and gives meaning to the words of section 79(1).

GUMMOW J:   Mr Jackson, you seem to be seeking in this Court entry of judgment, or alternatively, a new trial. 

MR JACKSON:   Is your Honour looking at the ‑ ‑ ‑

GUMMOW J:   I am looking at your submissions, paragraph 56.

MR JACKSON:   Your Honour, I have to say that I think there has been a shift this morning in the document that we handed to the Court in the sense that ‑ ‑ ‑

GUMMOW J:   Well, we should not have to be psychologists, you know.

MR JACKSON:   I am sorry, your Honour.  What I was going to say was this.  You will see paragraph 18 of that document where we said that alternatively, the question of a sufficiency of evidence should be remitted to the Court of Appeal.

GUMMOW J:   But no new trial?

MR JACKSON:   No, that is so, your Honour, yes.

HEYDON J:   I imagine the Court of Appeal will send it to the Dust Diseases Tribunal.  It seems to have been a case run, perhaps on many fronts, that was not considered by the judge because the judge could concentrate on the paragraph 82 case that prevailed.

MR JACKSON:   Yes.  Your Honour, I have to say there may be a slight air of optimism in thinking that this Court would deal with that issue, but assuming it is to go elsewhere, it is a question where it goes.  One has a situation where the issue was not dealt with by the Court of Appeal, and if I could just take your Honours back to what the Court of Appeal said at paragraph 24 of their reasons at page 668.  You will see that they were dealing, as I submitted earlier, with the question of whether there was evidence – they were dealing with the submission that, in any event, they should find for the respondent.  They then said ‑ ‑ ‑

GUMMOW J:   What is the special nature of this appeal under section 32?

MR JACKSON:   Your Honour, section 32 is actually set out, I think, in the Court of Appeal’s reasons at page 657, paragraph 3.  One sees 32(1) gives an entitlement to appeal if there is dissatisfaction –

with a decision of the Tribunal in point of law or on a question as to the admission or rejection of evidence –

Now, subsection (2), on the hearing of the appeal, the Court can –

remit the matter to the Tribunal . . . and may make such other order in relation to the appeal as the Supreme Court sees fit.

The Court of Appeal seems to have taken in paragraph 24 what is, with respect, a somewhat narrow view of its powers.

FRENCH CJ:   This has to be read with the provisions of the Supreme Court Act, does it not, section 75?

MR JACKSON:   Yes.  Your Honours, there remains that question whether there is an implied – “repeal” may be the wrong word – abatement of section 75A because of the particular provisions of section 32 of the ‑ ‑ ‑

FRENCH CJ:   Maybe some but not all of the provisions would apply.

MR JACKSON:   Yes.  It is difficult to see, with respect, why if there were a case where it was held that there had been an error in the admission of evidence – held in the Court of Appeal there had been an error in the admission of evidence, that the Court of Appeal could not dispose of the matter, that is, make such order in relation to the appeal as it thought fit – your Honours, I should interpolate by saying, the provision refers to the Supreme Court but the work is assigned to the Court of Appeal – why it could not dispose of the matter.

HAYNE J:   Why would it not, in some cases at least, be a matter for retrial?  Had a correct ruling as to evidence have been given at the time when it might ordinarily be thought appropriate to give it, the party whose evidence is rejected, might take different action to repair his or her hand?

MR JACKSON:   Well, your Honour, they may, but if one had a situation where the evidence should not have been admitted, one does have a – sorry, may I start again?  If one has the trial and the trial is taking place in circumstances where a party seeks to adduce evidence, the evidence is adduced over objection, and the party does not seek to adduce any other evidence that would supplement that, if I can put it that way, then the party has conducted its litigation in the way that it has chosen, and it does in a sense take its chance, as it were, in relation to the correctness of the ruling on admissibility and the evidence which it sought to adduce.

It has to be recognised then that there is the ability to appeal on the ground of the wrongful admission of the evidence, and when the matter comes before the Court of Appeal it is a matter for it to decide, in our submission, whether the appropriate course is one where the case should be remitted to the Dust Diseases Tribunal or can be dealt with by itself.  I use the “should” and “can” difference because it may be that the decision of the judge on the question of accepting other evidence has been affected by the evidence which was incorrectly admitted.

GUMMOW J:   That brings one back to page 82.  The objection here was to all of the opinions expressed in this document.

MR JACKSON:   Yes.

GUMMOW J:   That was not maintained.

MR JACKSON:   Your Honour, it is not really necessary to maintain it, with respect, because the situation which emerged was one where only part of the evidence was the part upon which there seemed to be reliance placed, and your Honour, one would be in a position of the court saying “Why are you dealing with this.  The judge did not rely on it.”  I should say, your Honour, again, if I complete what I ‑ ‑ ‑

GUMMOW J:   But you said that the plaintiff had an opportunity to pursue another course, but that would have been, as to most of it, a futile course.  All it needed to do was clean up this expression of opinion, this particular aspect.

MR JACKSON:   Your Honour, that is so.  That was the difficulty that arose in the case.  It may be if there were a completely fresh trial, maybe it could, maybe it could not, and our position would be different also, but in our submission, the more appropriate course would be to remit the matter to the Court of Appeal, the Court of Appeal then to deal with that issue, and that one of the possibilities then might be the Court of Appeal itself remitted the matter to the judge.

BELL J:   That might well follow given, as the Court of Appeal noted, the wider case just does not seem to have been dealt with by the primary judge.  If one looks at the pleading, you have – this is at page 12 of the appeal book – the case is put as:

the plaintiff was regularly exposed to and inhaled large quantities of silica dust –

There is some evidence from Professor Henderson concerning silicosis being caused only by inhalation of silica dust.  The question that seemed to have concerned his Honour went to the breach of statutory duty, which was one aspect of the case that was pleaded, but it would be difficult for the Court of Appeal surely to deal with the case in those circumstances.

MR JACKSON:   Your Honour, the situation of course is that if one sees expressions such as “excessive dust” and things of that kind, but in circumstances where whether they have statutory force or not, there are standards available regarded as being the appropriate standards for people engaged in the industry it would be a question of considering whether there was evidence that showed altogether that there had been something which amounted to a breach of duty, taking into account those things.

BELL J:   But the particulars of breach of duty in relation to the common law claim were expansive.  I mean this was a case where one had evidence, I think, if complaints made by neighbours concerning the excessive quantity of silica dust and the like.

MR JACKSON:   Well, yes, there were some, yes and then that reduced, I think.  Your Honour, I do not think could advance what I say on that topic more than I have said, really.  I was going to go on, if I may, to the second issue and that is the question of the specialist Tribunal.  It relates to the observation made by the primary judge in volume 3, page 599, paragraph 87.  Your Honours will see he spoke:

Of greatest significance is the fact that Mr Hawchar suffers from silicosis. 

Then your Honours will see the remainder of that paragraph.  The part that that observation played in the judge’s reasons can be seen from paragraphs 83 through to ‑ ‑ ‑

GUMMOW J:   Just before you do that, Mr Jackson, this JLT Scaffolding Case is that a decision of the Court of Appeal?

MR JACKSON:   Yes, your Honour, yes.  But there is a later decision in which that is referred to, your Honour.  I am going to come to that.  The later decision is ICI in the Court of Appeal where there is some discussion of these cases.  Could I just say, your Honours, this that if one goes to paragraphs 83 to 86 the observation in paragraph 87 was one of the factors added on to the calculation at paragraph 83 to show that appropriate levels were exceeded.  As appears from paragraph 87 it was the factor that the judge treated as being of the greatest significance.  The issue is dealt with, your Honours, by the Court of Appeal at page 678.  Your Honours will see in paragraphs 51 to 54 – now, in paragraph 51 it said:

The legitimacy of a judge –

doing that –

in understanding a dust disease is established by ICI –

and, your Honours, I will come to ICI in just a moment.  What was said by the Court of Appeal in paragraphs 51 through to 54 was essentially that all that was being done by the judge at first instance was to use his expertise to draw more readily conclusions from what appeared in the evidence, and your Honours will see the reference there to the passage from Cross on Evidence.

Now, your Honours, if I could just say first of all what was actually said by the Court of Appeal about what the judge was doing in the particular case does seem, with respect, rather to understate what he said at paragraph 87 because as your Honours will recall at paragraph 87 he says a feature of the “greatest significance” was, and so on, whereas the Court of Appeal said in paragraph 53 that all he was doing – this is page 679, the last sentence of paragraph 53:

The primary judge’s remarks . . . can be seen to be using his expertise to draw more readily conclusions from what appeared in the evidence.

Your Honours, the principal decision on the issue in New South Wales is ICI Operations Pty Ltd v WorkCover Authority of New South Wales ‑ ‑ ‑

GUMMOW J:   What is being said?  This assumes that a person immediately appointed to a specialist Tribunal is already a specialist, so on day one, the light shines upon them?

MR JACKSON:   The light shines upon them, your Honour, even if ‑ ‑ ‑

FRENCH CJ:   Well, from them, really.

MR JACKSON:   Your Honour, if one took, for example, the appointment of someone who had had no experience in the area before, whose work had, say, been as a senior officer of the Attorney-General’s Department, or a personal secretary to a minister or something of that kind, and – I am speaking about the usual rather than the unusual sometimes, your Honours – but if that were to occur, then it would seem surprising if the halo of knowledge were to descend upon them instanter. 

But it does have the difficulty – it draws a distinction between the judges who have had experience in the area and those who have not, and your Honours it does create the difficulty.  Let us assume that there is a judge who has been dealing with asbestos cases for three years, and not dealing with silicosis or something of that kind.  Is the judge to go and talk to the other judges and say “What has been happening in the silicosis area while I have been away doing other cases?”  It does create great difficulties, your Honours.  Could I go to what was said ‑ ‑ ‑

HEYDON J:   Could I ask a procedural question?  This statement in paragraph 87, did the judge raise that with the parties?  Did he indicate to them that he was going to take that into account?

MR JACKSON:   I think the answer is no, your Honours.  I am going to come to the particular provisions of the Dust Diseases Tribunal Act dealing with that question in just a moment because they do cast some light upon the issue.  In ICI Operations [2004] 60 NSWLR 18 at 62 - it commences at paragraph 216. The issue which arose is that set out in paragraph 216 and paragraph 218. This was a case dealing with the Dust Diseases Tribunal.  Your Honours will see a review of the cases.  It commences at about paragraph 220 and goes through to 228.

You will see a reference in paragraph 220 to Bryer, and it said the Workers’ Compensation Commission could take into account, in effect, “conditions of employment and rates of pay”.  You will see in paragraph 221 a reference to Tame, holding that the Workers’ Compensation Commission could –

take into account its general knowledge of silicosis . . . and to form the opinion that the facts so deposed to did not satisfy it that the conditions of employment did not expose the worker to the ordinary risks of such employment but that the general evidence showed that they left him exposed to some risk of inhaling silica dust”.

You will see a reference to J & H Timbers v Nelson, which approved Chief Justice Jordan in Bryer, the first of the two cases.  Your Honours will see in paragraph 223 a reference, once again, to the Workers’ Compensation Commission and the right to a –

fund of general knowledge concerning conditions of employment and rates of pay –

a kind of qualification by Justice Young, referred to in paragraph 224, and GIO General v ABB Installation & Service Pty Ltd, and, your Honours, an observation made there –

Because all exposure is relevant in the aetiology of the disease of mesothelioma, the quantity of fibre inhaled is irrelevant.

Your Honours, paragraph 226, a rather neutral observation by the Court of Appeal, and then paragraph 227, a reference to Wallaby Grip, and again a cautionary note, and then if one goes over to page 64, the last few lines of paragraph 227.  Then, your Honours, at paragraph 229 there is a reference to the distinction drawn in Cross on Evidence.  Your Honours will then see, if one goes to paragraph 232, the decision of:

the Bryer line of authority, confirmed in its applicability to the Dust Diseases Tribunal by a recent unanimous judgment of this Court in GIO General Ltd v ABB Installation & Service Pty Ltd, establishes that Judge Curtis was entitled to rely upon his knowledge as a member of a specialised tribunal to express a view about the quantity of exposure to asbestos dust which might cause mesothelioma as opposed to that which might cause the diseases from which Mr Brazier had suffered.

Her Honour then goes on to deal in more detail with the facts of the case.  But may we say this, your Honours, that neither in that case, nor did the Court of Appeal in this case refer to provisions of the Dust Diseases Tribunal Act, which were germane.  In ICI the Court of Appeal does not appear to have been referred to them.  In this case the Court of Appeal was referred to them, but did not refer to them in its reasons.

Could I take your Honours to the Dust Diseases Tribunal Act provisions?  Your Honours, those provisions, in our submission, are against the notion that a judge of the Dust Diseases Tribunal can, just as here, rely on specialised knowledge without more.  Now, in that regard could I go to section 25 of the Dust Diseases Tribunal Act?  Your Honours will see that section 25(1) in effect adopts the Evidence Act. 

Now, the Evidence Act contains section 149 which provides for judicial notice but which requires giving the parties an opportunity to make submissions on the issue whether that should be – sorry, did I say 149, your Honours?  I am sorry, it is 144, your Honours, not 149.  Your Honours will see in subsection (4) that:

The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

That is the first thing, your Honours.  The second thing is that section 25 – returning to the Dust Diseases Tribunal Act - section 25(3) gives a court power to receive:

Historical evidence and general medical evidence concerning dust exposure and dust diseases which has been admitted in any proceedings before the Tribunal may, with the leave of the Tribunal, be received as evidence in any other proceedings before the Tribunal, whether or not the proceedings are between the same parties.

Now, amongst other things, your Honours, the requirement for there to be leave would give a party an opportunity to argue that that course should not be taken.  Then one goes, your Honours, to section 25B, and section 25B(1) seems to impose a prohibition.  It says:

Issues of a general nature determined in proceedings before the Tribunal . . . may not be relitigated or reargued in other proceedings . . . without the leave of the Tribunal –

and then, your Honours, one sees subsection (1A), which says, to put it shortly –

If an issue . . . is the subject of other proceedings before the Tribunal (the later proceedings) and that issue is determined in the later proceedings on the basis of the determination of the issue in the earlier proceedings, the judgment of the Tribunal in the later proceedings must identify the issue and must identify that it is an issue of a general nature determined as referred to in this section.

Your Honours, the terms of the judge’s reasoning in the present case would seem to be observations about an issue which falls within section 25B(1), an issue “of a general nature determined in proceedings before the Tribunal”.  But one does not find any identification that that is an issue of a general nature determined, as referred to in the section.  One then sees, your Honours, in subsection (3):

The rules may provide that subsection (1) does not apply in specified kinds of proceedings or in specified circumstances –

The relevant rule, your Honour, is in the Dust Diseases Tribunal Rules, rule 9, and it is said that:

A party who intends to rely in any proceedings on . . . section 25B(1) of the Act, must within a reasonable time file and serve on all other parties notice of that intention, including full particulars –

and so on.  Obviously the Tribunal can, in effect, override that in subrule (2), in the sense that it can do it of its own motion, but at the same time it seems apparent enough that the provision requires that the course referred to there be taken.  Your Honours, one notes, of course, that section 25B(4) says:

This section does not affect any other law relating to matters of which judicial notice can be taken or about which proof is not required.

But, your Honours, that means, of course, that the provisions of section 144 of the Evidence Act are capable of application and are not affected by the existence of 25B.

FRENCH CJ:   I see in the note that the primary judge, I think, obviously at some time after this judgment was given, actually addressed the operation of section 25B.

MR JACKSON:   Yes.

FRENCH CJ:   I think that might be a convenient moment, Mr Jackson.

MR JACKSON:   Yes, your Honour.  I expect to be about 10 minutes.

FRENCH CJ:   Yes, all right.  We will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I conclude what I wanted to say about the specialist Tribunal, and then go on to deal with a couple of matters that were raised this morning.  So far as the specialist Tribunal issue is concerned, the only matters I wanted to say further were these.  First, and simply to give your Honours a reference to the relevant paragraphs of our written submissions in-chief and in reply, the submissions in-chief are page 11, paragraphs 48 and 49.  The submissions start at paragraph 42, but I wanted to refer particularly to paragraphs 48 and 49 and also to the submissions in reply, pages 4 and 5, paragraphs 16 to 21.

KIEFEL J:   Just on the point of the specialist Tribunal question, it is on one view interesting that the primary judge drew his own conclusion, given that it appears Dr Henderson’s conclusion, which the primary judge referred to at paragraph 93, appeal book 601, might be on one view referable not only to medical outcome, but to the issue of causation, which brings me back to the point I raised with you earlier about whether scientific measurement of silica was critical to the case as pleaded and whether or not there was another path of reasoning. 

The Court of Appeal at paragraph 53, appeal book 679, seems to be alert to an extent to that possibility because it refers to Dr Henderson’s opinion tending to support a conclusion of exposure, but this, I suppose, may be more relevant to a question of remitter, rather than any other substantive question, but certainly relevant to that.

MR JACKSON:   Well, your Honour, what one sees, going back to the first part of what your Honour was putting to me, is that the judge at first instance does seem to have treated the specialist jurisdiction issue as being a separate matter and that is apparent from the arrangement of his reasons from paragraphs 83 to 87, and the weight that he attributed to it is set out in paragraph 87, “Of greatest significance,” et cetera.  Your Honours, having said that, there was some medical evidence.  If you get silicosis, it tends to support a conclusion that you were exposed to unsafe levels of silica, but having said that, it really is simply restating a conclusion, because if you have silicosis, you have been exposed to levels of silica that for you are unsafe.

KIEFEL J:   But that evidence was not objected to, was it?  I know I am taking you off the track of the evidence that we are talking about.

MR JACKSON:   Yes I am sorry, your Honour.  I think, your Honour, I can only repeat what I am being told.

KIEFEL J:   It is difficult to remember objections after ‑ ‑ ‑

HEYDON J:   The whole of Professor Henderson’s evidence was objected to, was it not?

MR JACKSON:   Yes it was.  I think that is so, your Honour.  Perhaps I can give your Honour a note about what happened in relation to that because not all the material is in these books. 

KIEFEL J:   Yes, thank you.

MR JACKSON:   Returning to the point your Honour was making to me though, there would have to be, on the assumption your Honour is putting to me, some examination of the evidence in toto to see what the right result should be.

KIEFEL J:   Which leaves a question about remitter?

MR JACKSON:   Yes, your Honour, and if it be and the evidence that was there was there, it then becomes a question whether it should be Court of Appeal or to the Tribunal.  It was not a question, in our submission, of going back to the primary judge, a question of remitter to the Tribunal, in our submission, because there had been a number of findings made against us on the basis of material that should not have been there, on our submission.

Your Honours, one of the difficulties that does arise in relation to observations such as that by the Court of Appeal at the top of page 679 and Dr Henderson is that there is not anything to put a figure on what is meant by, for example, excessive levels of silica or what is usual or unusual in the circumstances.  That is a difficulty that arises in relation to generalised evidence of that kind.

Your Honours, could I come back then to a couple of matters that were raised this morning?  One of them was raised by your Honour Justice Gummow about when the objection was first made to the evidence of Dr Basden.  It was first made during the opening of the case.  It is not in the book, in the appeal books, but it was page 7 of the transcript.  It was also developed in some written submissions that were put in; again, they are not in the book.  Your Honours, could we just say ‑ ‑ ‑

HAYNE J:   Are those materials that we should eventually have, Mr Jackson?

MR JACKSON:   Your Honour, I am happy to provide them to the Court.  Your Honours, could I just say in relation to the 70 objections that were referred to, your Honours, those were not all taken to Dr Basden.  There were other medical and scientific witnesses dealing with issues that do not arise at all now and the number of objections was related to those as well and the judge’s interventions provoked a number of them.  Your Honour Justice Gummow asked whether there was a challenge to the opinion at page 322 in volume 2 and ‑ ‑ ‑

GUMMOW J:   In the last sentence.

MR JACKSON:   Yes.  Your Honour, the opinion depended upon the amount of dust in the air and the challenge to that has already been addressed.  The foundations of the opinion were challenged, in our submission.  Dr Basden accepted that he could not assist in determining what a safe level was.  One can see that at page 90 in volume 1, commencing at about line 28.  It is a passage that goes through to about line 40 on that page.

Your Honours, the opinion in question depended upon the practicality of alternative measures, and Dr Basden’s ability to say something meaningful about that was challenged in a passage which commences at page 104, about line 11.  It goes through to about line 54, and it is a passage that is dealt with also on page 105 and it concludes on page 106, about line 15.

GUMMOW J:   What is the significance of this course on particle technology that Dr Basden seems to have run, referred to at page 90, line 43?

MR JACKSON:   Well, your Honour, the significance of it was – and I think, in our submission, it was not significant, if I can put it that way – you can see his qualifications are set out as part of his opinion.  His CV commences at pages 324 – or is it 325.  I think, your Honour, what it is seeking to demonstrate is that he was dealing with fuel technology and there was nothing particularly to relate fuel technology to the particular case.  It goes on to page 91, about line 10, nothing to do with safety, to put it shortly.

CRENNAN J:   At page 91, about line 37, he gives some evidence about being familiar with cyclones which filter out respirable particles, and then over the page at about line 19 and following, he talks about his own experience measuring a number of dusts – “probably silica would have been amongst them” – and he gives evidence anyway on numbers of occasions of using those cyclones to measure dust, something he is familiar with through his own ‑ ‑ ‑

MR JACKSON:   I am sorry, your Honour, I just lost the page ‑ ‑ ‑

CRENNAN J:   Sorry, page 92, line 18, Mr Jackson.  He is asked about respirable fractions of sandstone and he goes on to say that he has measured respirable fractions of a number of dusts, and he seems to have done that using a cyclone, the workings of which he described on the previous page, and that was also taught and demonstrated in the laboratory as well as at the university.

MR JACKSON:   Your Honour, that demonstrated that there was available the materials to produce a measured result, but they had not been used, and the other evidence established they had not been used.  Your Honours, just one question your Honour Justice Kiefel asked me this morning, and it was about dust particles and so on, could I just say this, your Honours, that there are really two questions that arise.  One is how many dust particles of a certain size are in a cloud. That is question one, and the second question is to what extent do particles of a certain size penetrate the lung.

The Johannesburg Curve, to which I took your Honours this morning, which I think is page 605 is an accepted rule for deciding the second question do what extent the particles of a certain size penetrate the lung.  But there was not evidence of a rule for the issue to which I first referred and that is how many dust particles of a certain size are in a cloud?  Your Honours, that must depend on, amongst other things, what cutting implement is used and what is the density of the material.

We have referred, your Honours, if I could just take your Honours to page 3 of our submissions in reply, to footnote 7.  There is some discussion of the question about the Johannesburg Curve and the references are given, your Honours.  I am afraid they are given in the original transcript numbers, but your Honours will see footnote 7 referred to there.  I am just reminded I should have referred to one other matter and that is in volume 1, page 108 commencing at about line 42 and going through to about line 48 where he was asked:

Q.Given that you would not claim to be able to express an opinion based on specialised knowledge that you have based either on study, training or experience that during his time with Dasreef some other precautions could have been adopted which would have reduced Mr Hawchar’s exposure to respirable silica below any particular standard, correct.

He said that was correct.  The next question and answer you will see also.  That I should have mentioned, your Honour, is in a sense, a passage directly challenging the last conclusion in the report at the end of page 222. 

Your Honours, those are our submissions.  I refer, of course, to our written submissions, as well.

FRENCH CJ:   Thank you, Mr Jackson.  Yes, Mr Toomey.

MR TOOMEY:   Thank you, your Honours.  Your Honours, can I deal first with what could, I suppose, conveniently be called the Makita point and then go on to the question of whether or not Mr Basden possessed and demonstrated sufficient specialised knowledge to bring himself within the requirements within section 79? It is, we say, beyond challenge that the Evidence Act was passed, including section 79, with the intention that no basis rule would be created in section 79.

The Act was based on drafts, discussions and such like by the ALRC and other interested bodies and parties.  The intention to refrain from included a basis rule was stated in the first of the ALRC’s submissions in 1985 interim report and it never changed.  The principal issue is stated thus by the appellant in paragraph 2 of its primary submissions:

The principal issue is whether, in order for an expert opinion to be admissible, it is a requirement of s 79 of the Evidence Act1995 (NSW) that the expert not only have expertise generally in the area of contention, but that the expert disclose facts, assumptions and reasoning in a manner sufficient to make it plain to the trial judge that the opinion is wholly or substantially based on that expertise.

Facts, assumptions and reasoning. None of those appear in section 79. Furthermore, at least facts and assumptions, reasoning perhaps not, but certainly facts and assumptions form part of the basis rule. In other words, what the appellant is arguing is that despite the manifest intention that section 79 would exclude a basis rule, that in fact something is to be engrafted on it, which means it might as well have been drafted and passed through the legislature with a basis rule on it.

Now, maybe there should be a basis rule. There are obviously advantages, though we would also say disadvantages, but that was a matter for the legislature. It is simply impossible, in our respectful submission, to read section 79 as including the requirements which are found in Makita.

FRENCH CJ: Section 79 excludes a rule of inadmissibility, does it not, which is the rule set out in 76(1)?

MR TOOMEY:   Yes, your Honour.

FRENCH CJ:   What does that say about the basis rule?  In other words, I am saying, what does that exclusion – exclusion of that rule of inadmissibility say about the basis rule?  There are other rules governing admissibility, are there not?

MR TOOMEY:   Indeed, your Honour.

FRENCH CJ:   Relevance.

MR TOOMEY:   Well, we say that it is against the existence of a basis rule.

HAYNE J:   What exactly do you mean by a basis rule?  I wonder whether there may not be some flexibility in your use of the term.

MR TOOMEY:   Well, a basis rule must be, your Honour, proof not only of the opinion and specialised knowledge and the substantial reliance, but must expose also the assumptions, facts and reasoning, in other words, what Justice Heydon said in Makita, a basis rule being material which must be included in opinion evidence to make it acceptable, not only as opinion, but as justified opinion.

HAYNE J:   What meaning are you giving to the statutory expression “opinion of that person that is wholly or substantially based on that knowledge”, or are you directing this argument to some other aspect of the section?

MR TOOMEY:   No, your Honour, we address our argument to the fact that that subsection can be applied as it is written without the necessity for anything else being engrafted on.  What the statute says is that you need specialised knowledge, you need a basis for that specialised knowledge and the evidence must be wholly or substantially based on that knowledge.  It does not require an extraneous proof before the material goes into evidence of the basis.  The opinion is enough, in our respectful submission.

That accords, we say, with what was said by Justice Gaudron in HG v The Queen at paragraph 63.  There was also a reference by your Honour Justice Gummow in paragraph 124 to your agreement with her Honour that:

“[t]he opinion rule” . . . did not support the refusal of the adjournment.

The refusal of the adjournment was basically because it would be of no point to bring in material which was criticised for the matters that Justice Gaudron set out in 63, in her opinion, only went to weight and not admissibility.  My learned friend read to your Honours the decision in Sydneywide of the Full Bench of the Federal Court.  We would repeat what was said by Justice Branson in paragraph [10]:

Third, as I pointed out in Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 373‑4; 157 ALR 615 at 616‑7, the common law rule that the admissibility of expert opinion evidence depends on proper disclosure of the factual basis of the opinion is not reflected as such in the Evidence Act –

There are a number of other Federal Court cases in which the same stance has been adopted.  There are two we wish to draw your Honours’ attention to.  The first is Neowarra v Western Australia decided by Justice Sundberg and his Honour deals specifically with the basis rule at paragraph 16, page 215 of the report in the Federal Court Reports.

GUMMOW J: 134 FCR 208.

MR TOOMEY:   That is it, thank you, your Honour.

GUMMOW J:   At what page?

MR TOOMEY:   At 215, starting at paragraph 16.  His Honour sets out the course of the referral through the Law Reform Commission and its ultimate decision referred to in paragraph 19 on page 216.

FRENCH CJ:   Which is in relation to anthropological evidence, I think, is it not?

MR TOOMEY:   It was, your Honour, yes, as was the case I am coming to, your Honour, which your Honour decided.  But his Honour said in paragraph 19:

Ultimately the Commission decided not to include a basis rule in its draft legislation.  It gave as its reason . . . a concern that such a rule would make it impossible:

. . . to have opinion evidence which had as a significant component the opinions or the statements of others.  This would preclude the tendering of evidence whose value is dependent upon material not before the court and, therefore, difficult for it to assess.  While this would have its advantages, it would fail in its inflexibility to take account of the normal means by which experts generally form their opinions –– by means of reports of technicians and assistants, consultation with colleagues and reliance on a host of extrinsic material and information that it would be an endless and unfruitful task with which to burden the courts.

At paragraph 20 his Honour said –

Although the Law Reform Commission considered the better view to be that “no such rule” exists . . . it was accepted as a common law requirement by Heydon JA in Makita.  That is, for a person’s opinion to be admissible, it must be based on facts stated by the witness and either proved by the witness or assumed by the witness and proved aliunde.  Heydon JA said:

59.     If Professor Morton’s report were to be useful –

and this, of course, was going to the facts of Makita and the slippery floor report from Professor Morton –

it was necessary for it to comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.

. . . 

64.     The basal principle is that what an expert gives is an opinion based on facts.  Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based.  If other admissible evidence establishes –

I do not think I need to read the rest of that paragraph.  Paragraph 21:

Section 79 imposes three conditions for the non-application of the opinion rule contained in s 76:

·the person whose opinion is in question must have specialised knowledge

·that specialised knowledge must be based on the person’s training, study and experience

·the person’s opinion must be wholly or substantially based on that specialised knowledge.

22 The “basis rule” does not feature in s 79. The Australian Law Reform Commission explained why. That the legislation does not include any common law “basis” requirement is now established by the cases. See Quick v Stoland -

which was the earlier case decided by Justice Branson, Sydneywide Distributors, Guide Dogs Owners’ and compare Makita.

GUMMOW J:   How does one give any content to this requirement of  “wholly or substantially based”?  What do you say that requires?

MR TOOMEY: Your Honour, in the first place, we would say that it would be an unusual case where, if the specialised knowledge was established in the opinion and the particular training and experience were established in the opinion, that it would not be clear whether or not – I am sorry, at least prima facie apparent whether or not it had been substantially based on that knowledge. It would then be subject to the usual course through a judicial proceeding. It would be subject to examination in‑chief, cross‑examination, re‑examination and if it be correct that the effect of section 79 without the basis rule is that weight is all that is necessary – that it have some weight is all that is necessary to get a report admitted, then its use, its worth and its relevance can be determined in a normal court process.

HAYNE J: You accept, I take it, that section 79 is prescribing a rule of admissibility?

MR TOOMEY:   We do accept that.

HAYNE J:   What then is the value of referring to the weight of the evidence at the point of determining its admissibility?

MR TOOMEY: Well, with respect, we do not say that; I may have expressed it badly. What we say is that section 79 is its own rule of admissibility. You meet the words.

HAYNE J:   Yes, and therefore is it a condition of admissibility that it be demonstrated to the court considering admissibility that the opinion in question is wholly or substantially based on the knowledge identified in the earlier part of 79(1)?

MR TOOMEY:   Well, we would say no, your Honour, but we would say it would very rarely appear because whether it was based on the knowledge would almost invariably appear on the face of the opinion.

HAYNE J:   If it does not?

MR TOOMEY:   Well, we would say it was still admissible, your Honour.

KIEFEL J:   The section can be seen as a requirement both of expertise and of sufficiency of connection between the knowledge or expertise and the opinion given.

MR TOOMEY:   Yes, your Honour, it can.

KIEFEL J:   So when it comes to be applied in a case such as this is the question who has to establish the sufficiency of connection?  Is it the party putting forward the expert who has to show not only that there is a connection but that is a sufficient connection – I think that is where the difficulty lies?

MR TOOMEY:   I think it probably does, your Honour, but we say that it lies ‑ ‑ ‑

KIEFEL J:   At what point is that sufficient and when does the other party then have to produce their expert to say it is not properly based upon knowledge, experience or training?

MR TOOMEY:   Well, they may not have to at all, your Honour, because if the material which is admitted into evidence is merely a bald statement of the expert that this is based on my – I am sorry, if there is no such statement then it may be in the circumstances of the case that the opinion has no weight.

KIEFEL J:   When you say “weight” then what you are really saying is it does not establish a sufficient connection between the background knowledge and the opinion stated.  It is not evident prima facie.  I mean, there must be some level at which you have to pass.

MR TOOMEY:   Our primary argument, your Honour, is that that will not arise because if a person states a specialised knowledge, establishes that specialised knowledge and gives an opinion which will not be admissible unless it fits within that field of specialised knowledge, that it must be apparent that it is based on – to at least some degree ‑ ‑ ‑

KIEFEL J:   But does it have to be evident that they have drawn upon a qualification experience, or whatever, within that area?  I think that is where it comes down to, if we are not talking in generalities.

GUMMOW J:   Quite often, in the old days anyway, there would be an averment ‑ ‑ ‑

MR TOOMEY:   Yes, there would.

GUMMOW J:   ‑ ‑ ‑ of the basis.

MR TOOMEY:   Yes.  But your Honour, the requirement for specialised knowledge ‑ ‑ ‑

GUMMOW J: A question is whether section 79(1) is accepting that when it says that is “wholly or substantially” said to be based. Is that how you read it?

MR TOOMEY:   No – I am sorry.  We do say it would be enough if the witness said “My opinion is wholly and substantially based on my knowledge”.

HAYNE J:   Can I put the difficulty to you squarely, Mr Toomey, so you can deal with it?

MR TOOMEY:   Yes, your Honour.

HAYNE J:   That makes the admission of expert evidence dependent wholly on the lengths to which the expert will go.  It deprives the judge of any control.  It exposes the opposite party to the risk, not only that the evidence is admitted, but it then must meet it.  Trials are prolonged.  Why should we go down that path?

MR TOOMEY:   With great respect, your Honour, it would be our respectful submission that it is the other path that would prolong trials.  May I say again, your Honour, that this is predicated on the proof of a particular sort of specialised knowledge.  If the witness proves specialised knowledge in X, and then gives an opinion on Y, it is irrelevant.  If he has proved specialised knowledge – I am sorry, your Honour.

HAYNE J:   No, no.

MR TOOMEY:   If he proves specialised knowledge in X, and his opinion is on X, then one is entitled to look at his specialised knowledge and draw the conclusion from his opinion that it is wholly or substantially based on the specialised knowledge.

HAYNE J:   My question is provoked in part by the emergence of the so‑called specialist accident investigator, the slipping expert, so they are multiplied, and trials are prolonged considerably.

MR TOOMEY:   Indeed, your Honour, yes.  Your Honour, with great respect, they would be weeded out by the specialised knowledge requirement.  May I point out that our argument is that the opinion of Chief Justice Gleeson in HG v The Queen is properly to be read on the basis that the opinion was not based on specialised knowledge.  Mr McCombie’s psychologist’s report was not based on specialised knowledge.  If you get someone who comes along and says, “I am an expert on the way you should face when blowing up a Sherrin football”, you say, “Well, sorry, that is not specialised knowledge, you are out”.  Specialised knowledge is the control.  I had forgotten your Honour was a Victorian.  The control is the specialised knowledge.

CRENNAN J:   It is the court who has to make a decision about that though, whether it is based wholly or substantially, is it not?

MR TOOMEY:   Yes.

CRENNAN J:   It is not again ipse dixit.  It is not that the expert, soi‑disant if he is such, saying, “This is my specialised knowledge and my opinion is based on that”.  The court itself has to be in a position, does it not, to determine whether in fact the opinion is based either wholly or substantially on the knowledge?

MR TOOMEY:   Your Honour, it would be like any other witness.  If any other witness gives evidence of something – I mean, if you turn to the lay witness, you do not have a voir dire on the lay witness, you take the lay witness’ evidence and then after it has been subjected to scrutiny by one means or another the court decides whether it is acceptable.  There is no particular reason why opinion evidence should be any different, provided the ability of the specialist, the expert, to give the opinion is established, and that is done by establishing specialised knowledge and by looking at the subject matter of the opinion to see whether or not it prima facie is based on that knowledge.

If  a professor of neurology - perhaps a medical example is not a good one.  Supposing a mining expert said “I have been dealing with different kinds of minerals and their identification for 26 years and I have examined this material and I say that it is mineral X”.  Does it need a separate statement of the fact that it is substantially based on his specialised knowledge.  We would say it does not.  Can I remind your Honours that we are talking not only about facts and assumptions, we are talking about reasoning.  There are three requirements under Makita.  You must prove the facts, the assumptions and the reasoning which are the basis of the opinion.

FRENCH CJ:   But if an opinion is based upon an assumption of fact which the expert is unable to establish one way or the other it has to be established some other way, at trial, otherwise the opinion falls over. 

MR TOOMEY:   Yes, your Honour.

FRENCH CJ:   You say that it does not go to admissibility, that is a question of his evidence simply has nowhere to go in the event that the assumption on which it is based and which has to be proved by other means is not made out.

MR TOOMEY:   We accept, your Honour, that if the assumptions are wrong then the opinion is of no relevance.

FRENCH CJ:   Well, that gets it out, yes.

MR TOOMEY:   But there are remarks in the cases throughout the modern cases that it is always a question of whether the assumptions are perhaps partly right and that will affect the weight given to the opinion.  Some parts of it may be of value, some parts may not.

FRENCH CJ:   So when an expert opinion is accepted based on assumptions which are to be made good otherwise, is that a kind of provisional admission subject to relevance?  Is that what is happening in that case?

MR TOOMEY:   It could be, your Honour, although it depends.  You do not know what is going to be proved.

FRENCH CJ:   Yes.

MR TOOMEY:   In any case, you do not know what is going to be proved, whether all the other bases are established or not because we have all seen many cases in which the assumptions are given, the expert gives his evidence and then the assumptions are destroyed and the whole opinion is worthless.  That is not something new.  That is just, in our respectful submission, the normal course of evidence.  Evidence is tendered, goes into evidence, is tested through the forensic process and then some use is made of it or not, depending on what is left of it.

Can I just refer your Honours to something?  I am sorry, I should just finish Neowarra, your Honours.  At paragraph 23 on page 217, Justice Sundberg said:

While the legislation does not incorporate a “basis rule”, an expert should nevertheless differentiate between the facts on which the opinion is based and the opinion in question, so that it is possible for the Court to determine whether the opinion is wholly or substantially based on the expert’s specialised knowledge which in turn is based on training, study or experience -

which is one answer to the question that has been posed to me.

FRENCH CJ:   I think, incidentally, that my recollection is that the Federal Court guidelines for expert witnesses require disclosure of assumptions upon which the opinion was based.

MR TOOMEY:   I am sorry, I do not know that, your Honour.

FRENCH CJ:   I think they may still be in force.

MR TOOMEY:   They may well have been, I just do not know.

FRENCH CJ:   I think there are a similar guidelines in at least some other courts.

MR TOOMEY:   Yes, your Honour.  At paragraph 24 his Honour turns to paragraph [85] in Makita and sets out Justice Heydon’s reasons for his decision.  Justice Sundberg sets out at about point 4:

It is the fourth requirement set out by his Honour that is relevant here:

. . . so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far s the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way.

That seems to me, with respect, to be resorting the basis rule.  The reason his Honour gave for requiring this and the other presently immaterial requirements is that “if all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge”.  While that may be so with respect to other requirements, the expert’s exposure of the facts upon which the opinion is based is sufficient to enable the relevant inquiry to be carried out.  That inquiry is not dependent on proof of the existence of those facts.

Of course, one would assume that no expert opinion would be tendered which did not have an assumption basis for the Court to decide whether it was admissible in any event.  His Honour went on:

HG v The Queen does not support the supposed requirement.  After stating that an expert should differentiate between the assume facts upon which the opinion is based and the opinion itself, Gleeson CJ said at [39]:

Argument in this Court proceeded upon the basis that it was possible to identify from Mr McCombie’s written report some facts which he either observed or accepted, and which could be distinguished from his expressions of expert opinion. Even so, the provisions of s 79 will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.

HAYNE J:   Do you challenge that last sentence from the passage from Chief Justice Gleeson?

MR TOOMEY:   No, but we say that HG was solely directed to the question of specialised knowledge.

HAYNE J:   I understand that may be as a matter of precedent.  That is why I need to know whether you challenge the legal proposition that is there stated.

MR TOOMEY:   We say, with the greatest respect, that it is not based on the section, and it does have the effect of requiring that which is expressly excluded from the section, and Justice Sundberg went on –

His Honour does not thereby require, as a condition of admissibility, that the assumed facts on which the opinion is based are established by the evidence.  If at the end of the evidence they are not established, the weight to be accorded the opinion will be reduced, perhaps to nil.  But that is not a matter of admissibility.

We say reading back to the sentence that your Honour Justice Hayne has been questioning me on, ultimately that does not have to be done at the point of admissibility.  Your Honour the Chief Justice followed Neowarra in a case called Sampi v Western Australia, another native title case.  We have reproduced only part of the judgment, for reasons which your Honour would appreciate.  I imagine it took a great chunk of your life.  At paragraph 798 on page 129, your Honour said:

The application of the provisions of the Evidence Act to anthropological expert evidence was discussed by Sundberg J in Neowarra v Western Australia ‑ ‑ ‑

FRENCH CJ:   I do not think we have this.  Mr Toomey, do you have copies of this extract?

MR TOOMEY:   I am sorry, your Honour, I thought we gave it to the Court officer, your Honour.

FRENCH CJ:   Anyway, perhaps you can ‑ ‑ ‑

MR TOOMEY:   I am sorry, your Honour.  We have them, and we sent up some other material, and I thought that had gone with them.  It is at the bottom of page 129, which immediately follows page 3, your Honour.

The application of the provisions of the Evidence Act to anthropological expert evidence was discussed by Sundberg J in Neowarra v Western Australia (No 1) [2003] FCA 1399; (2003) 134 FCR 208. His Honour referred to the common law ‘basis rule’ that to be admissible expert opinion must be based on facts proven by admissible means or on facts ‘sufficiently like’ the facts properly proven to be of value . . .

799 As Sundberg J observed the basis rule is not a feature of s 79 of the Evidence Act.  The conditions in that section for non-application of the exclusionary rule contained in s 76 are that:

1.   The person whose opinion is in question must have specialised knowledge.

2.   The specialised knowledge must be based on the person’s training, study or experience.

3.   The person’s opinion must be entirely or substantially based on that specialised knowledge.

There is ample authority, cited by his Honour, for the proposition that the basis rule is not mandated in respect of expert opinion.

And then your Honour cites the part of Justice Sundberg’s judgment that I read before that:

an expert should nevertheless differentiate between the facts on which the opinion is based and the opinion in question, so that it is possible for the Court to determine whether the opinion is wholly or substantially based on the expert’s specialised knowledge which in turn is based on training, study or experience.’

GUMMOW J:   One difficulty in all of this is that training, study and experience does not, as it were, yield what to a common lawyer would be a fact always. 

MR TOOMEY:   That is true, your Honour.

GUMMOW J:   The life of the laws he has experienced to some extent. 

MR TOOMEY:   That is not logic, but experience, your Honour.

GUMMOW J:   To require that to be distilled into a fact as an integer necessary to the knowledge may be impossible in many cases.

MR TOOMEY:   We would respectfully submit that unless it was a very unusual field of specialised knowledge it would be apparent whether the training, study or experience related to it. 

GUMMOW J:   If someone comes and asks you whether there is any prospect of getting special leave in this case, you do not reel off a series of facts at them.

MR TOOMEY:   Your Honour, I would never waste my money by betting on a special leave outcome.  I think that is a special case, if I may say so, your Honour.

GUMMOW J:   Based upon experience in practice day to day at the Bar table and what that yields to one’s mental equipment.

MR TOOMEY:   If I said in an opinion, your Honour, “I have been at the Bar for over 40 years and I have done a bit of practice in the High Court, not a lot, but I have won a few special leave applications and lost a lot and it is my opinion having read this application that it is absolutely hopeless”, I think no one would have any doubt that that was wholly and substantially based on my knowledge and experience – my specialised knowledge.

HAYNE J:   That, in part, is a reflection of the kind of opinion that is being expressed.  There it is opinion in the nature of prediction.  The opinion with which we are concerned in this case is one of the kind described in 76(1), evidence of an opinion to prove the existence of a fact.  Is that right?

MR TOOMEY:   Yes.

HAYNE J:   What is the fact that this opinion was tendered to prove or what were the facts, if there were many?

MR TOOMEY:   It was tendered to meet the ‑ ‑ ‑

GUMMOW J:   Just a minute.  This notion of fact is not exactly philosophically immediately apparent either.  Lawyers think they know what facts are.

MR TOOMEY:   Yes.  Well, opinions, with respect, are not ‑ ‑ ‑

GUMMOW J:   The existence of an opinion is itself a fact.

MR TOOMEY:   Yes.

FRENCH CJ:   Going back to Justice Hayne’s question what was the fact, as you would put it?

MR TOOMEY:   Well, I will have to think about it, your Honours.  It has become so obscured that I am not sure, but I think it was ‑ ‑ ‑

HAYNE J:   If you want to add to the obscurity read Thayer and the distinction between law and fact, yes.

MR TOOMEY:   Yes, or even Justice Holmes, your Honour.  Your Honour, the fact that was to be proved, the ultimate fact, I suppose, was whether or not the plaintiff had been subjected to an unsafe load of dust and proper precautions for his safety had not been taken. 

KIEFEL J:   Was Dr Basden’s report and his evidence in‑chief tendered in proof of the claimant’s exposure to a particular concentration of respirable silica or was it tendered for, as I suspect, something else and this became a by‑product.

MR TOOMEY:   I will consult the man who was there, your Honour, if you will excuse me for a moment?  I am told, your Honours, that it was tendered for the purpose of showing that the damage suffered by the plaintiff was foreseeable and preventable.  It was not ‑ ‑ ‑

KIEFEL J:   So risk and breach of duty of the areas wherein?

MR TOOMEY:   Yes, your Honour.  It was not tendered, I am told for the ‑ ‑ ‑

KIEFEL J:   For causation?

MR TOOMEY:   ‑ ‑ ‑ purpose of proving that it was a particular level, but it was turned into that by the cross‑examination of the defendant.

KIEFEL J:   But did the claimant rely upon the report in submissions before the primary judge then to establish the issue which it had not originally been tendered upon?

MR TOOMEY:   Yes, but not by saying that Dr Basden had given evidence that the concentration of dust exceeded 0.2 milligrams in those precise terms, but by saying that Dr Basden’s evidence established that that was the case.

HAYNE J:   Sorry, can you put that proposition again?  I do not understand it.

MR TOOMEY:   Dr Basden’s evidence was relied on by the plaintiff as establishing that the concentration in the air greatly exceeded 0.2 milligrams.  It was not said to establish precisely what the concentration was.  He did not say because he did not measure, and this is one of the difficulties.  In these cases, who was ever going to be in a position to be able to come before a court and say, “And I have done precisely the same thing as was done by this man over a period of six years and I have reached the following conclusions on the following measurements”.  It is never going to happen because it cannot happen.  This man was exposed to silicosis daily, or five or six days a week for five and a half years.  How do you prove by measurement what he was exposed to, except by doing what was done in this case?

HAYNE J:   But what appears at page 320 of the appeal book was tendered to prove that Mr Hawchar had been exposed to dust at levels greater, I forbear from inserting “far greater”, but greater than was safe, and prescribed.

MR TOOMEY:   For the purpose of proving foreseeable injury and preventability.

HAYNE J:   I understand that, but was it tendered to prove exposure at levels greater than the standard?

MR TOOMEY:   It was, your Honour.  That was its subsidiary purpose and I have told your Honours, and I know your Honour appreciates what I say that it was foreseeability, preventability, but he expressed that view and he expressed it in the lengthy cross‑examination by my learned friend, Mr Parker.

FRENCH CJ:   But the factual basis he offers at the bottom of 320 is not quantitative beyond this proposition that:

a considerable proportion of the size distribution of the suspension would be 4µm and below –

That is, I take it, as a reference to the respirable level.

MR TOOMEY:   It is, your Honour, he says so:

hence would constitute the “respirable” ‑ ‑ ‑

FRENCH CJ:  

fraction of the dust cloud.

So that is as good as it gets in terms of the report as a quantitative statement?

MR TOOMEY:   Yes, but there is more material in the evidence.

FRENCH CJ:   Yes, but I am just looking at the report itself.

MR TOOMEY:   The report itself, that is about as far as it went, your Honour.  In our respectful submission, on the basis of Mr Basden’s experience - his training, his study, and his experience, it was admissible.  It was relevant material.  The defendant’s approach was encapsulated by what his Honour said at – sorry, your Honours.  Your Honours, I will find this because I want to give your Honours the learned trial judge’s exact words, but in making the Jones v Dunkel finding, he said that it was available for an inference to be drawn that had Mr Rogers, the industrial hygienist, been called, he would not have supported the ‑ ‑ ‑

HAYNE J:   Paragraph 88.

MR TOOMEY:   Thank you very much, your Honour.  Yes:

his evidence would not advance the defendant’s case that, in the absence of measurement, no conclusion may be made as to the probable concentration of respirable silica dust in the breathing zone of a person cutting sandstone with an angle grinder.

So that the defendant’s case was based on the fact that unless you could measure it, you could not prove that the concentration was negligent or excessive and yet that cannot be read, in our respectful submission, without reference to what Professor Henderson said at paragraph 93.

GUMMOW J:   Page?

MR TOOMEY:   I am sorry, page 601, your Honour.  What he was saying was the:

latency intervals of about 5-10 years characterise accelerated silicosis –

and that suggested that Mr Hawchar had had intense exposure to silica.  That must have coloured the evidence on the dust clouds and the other evidence which was before his Honour.  May I make a point about the appellant’s case on the dust clouds?  As I understand it, it is this, that since respirable silica dust is invisible, that it does not matter how much dust you have that does not prove what respirable silica is there, because you cannot see it - the respirable part you cannot see. 

But Mr Basden gave evidence that the fraction of respirable dust in silica is constant, the fraction.  So it is not the amount of the dust, it is the fraction of the dust.  If you have a litre of dust, you may have a couple of grams of respirable silica.  If you have 20 times that much, you will have 20 times as much respirable silica.  The fraction Dr Basden said was constant, and that I think is what the Court of Appeal picked up in a passage which has been criticised by my learned friends.

KIEFEL J:   Could you give us the reference to the passage?

MR TOOMEY:   Your Honour, can I first take you, if you would not mind, shortly to the evidence of Dr Basden at appeal book 1 at 93 at line 23, in cross‑examination of Dr Basden:

Can I just go back to this question of respirability.  I put to you that different minerals have different respirable fractions, do you agree with that or do you not agree.   A---No, the respirable fractions are the same, they may have different properties when they – they may have different values . . . but the respirable fraction itself is as defined.

On page 91 at the bottom of the page Mr Parker asked Dr Basden:

And different particulates have different respirable fractions.   A---Yes they do.

And you would not be able to tell me how –   A---I’m sorry, I may have misunderstood that.  The respirable fractions are the same for all dusts, as defined –

and he gives the definition.

HEYDON J:   That is simply because it is a factor of size, presumably?  A speck of coal dust, which is the same size as a speck of this type of dust, will go in or out just depending on its size?

MR TOOMEY:   Logically, that must be so, your Honour, and it is only respirable if it is sufficiently small.

KIEFEL J:   Does that answer the question of the concentration of those fractions in a given amount of dust?  Is he speaking of the same thing?

MR TOOMEY:   I think he was speaking, your Honour, of his assignment of a very much larger amount of respirable dust to the clouds, when the clouds were visible to other times.  Can I just say this to your Honours?  It is not entirely clear but from a passage on appeal book 118 it appears that, as I think your Honour Justice Gummow suggested this morning, the discussion between – or the discourse between Mr Parker and Dr Basden was on the basis that they were talking about 0.2 milligrams of respirable dust.  It starts at 33 on page 118:

You have expressed an opinion, a numerical opinion, as to the amount of dust of respirable silica in Mr Hawchar’s breathing zone, have you . . . 

A---Yes, that’s right.  . . . 

By that statement are you or are you not expressing an opinion as to what numerically you think the concentration of respirable dust in Mr Hawchar’s breathing zone would have been when he undertook the task that you saw depicted in the photograph.

Now, it is pretty clear what it is directed to.  It is not directed to the total dust load, it is directed to the respirable dust load.

FRENCH CJ:   Do I understand the term “respirable fraction” as used by Dr Basden, directly to refer to the typical fraction of a cloud of dust of an identified particle that is respirable.  In other words, it might be that you have a visible cloud of dust.  Typically 90 per cent of it is respirable and you cannot see it.  The other is non‑respirable, it might be inspirable or otherwise.

MR TOOMEY:   Yes, your Honour, and what Dr Basden said was that it does not matter how big it is, it is the fraction that counts.  That as I understand it.

FRENCH CJ:   Because what he is referring to at 91 is a kind of centrifuge process by the looks of it, so that the lighter stuff gets thrown out further than ‑ ‑ ‑

MR TOOMEY:   That is right, your Honour.  But from what is said on 118 at the passage I have taken your Honours to, it seems pretty clear that the questions that were being asked were asked and understood to be directed to the respirable fraction, and may I point out to your Honours in any event if you had 500 times as much dust, you will have 500 times as much respirable dust.  Your Honours, can I refer you to the ‑ ‑ ‑

GUMMOW J:   We do not have the plaintiff’s evidence, do we?

MR TOOMEY:   No, your Honour.

GUMMOW J:   Did he give evidence that he tasted the dust that he was ingesting?

MR TOOMEY:   He gave evidence, your Honour, that a mask he was wearing was so ill fitting that he could taste dust in his mouth and his nose.  My learned friend, Mr Jackson, made a light‑hearted reference to the neighbour pretty well suggesting, and I do not want to verbal him, but he did not use the actual words anyway, but suggesting that it was just a discontented neighbour.  Well, what Mr Buono, the neighbour, said, appears at – we have handed up, your Honours, the extract from Mr Buono’s evidence.  Your Honour, just pausing for a moment if I could, paragraph 35 on 583 is the source of the evidence that:

the mask did not form a proper fit over his mouth and the dust would get through the sides and into his mouth and nose.  He wore the mask, as instructed, only when he was operating the angle grinder.  He was not instructed to wear it at other times.

May I remind your Honours that he was in the yard for some hours every day, and sometimes for eight hours, and he was in the vicinity - if he was not cutting himself, he was in the vicinity of people who were - some of whom were using an angle grinder, but because he was not using an angle grinder, he did not have a respirator on.

BELL J:   When he did have the respirator on, it was the level 2 respirator.

MR TOOMEY:   That is correct, your Honour, which Dr Basden says was not enough.

BELL J:   Yes.  Now turning to the calculation that his Honour did at paragraph 82, appeal book 597, where he extrapolates on the basis of Dr Basden’s opinion to the ultimate conclusion that is challenged, he there includes an acceptance for the purpose of the calculation that the midrange mask fitted properly.

MR TOOMEY:   That is correct, your Honour, which we know to be not accurate.

BELL J:   Does he come back and deal with any finding of whether he accepts the evidence in that respect, that it did not fit properly?

MR TOOMEY:   No, I do not think he does come back to that, your Honour.

BELL J:   He made a general finding accepting the evidence of the plaintiff.  Is that right?

MR TOOMEY:   He accepted all Mr Hawchar’s evidence except for his denial that he had worked with sandstone in the Lebanon.

BELL J:   Yes.

MR TOOMEY:   But apart from that, he expressly accepted him as a witness of truth.

GUMMOW J:   What was the exception?

MR TOOMEY:   He had done some work with a cousin in the Lebanon on sandstone, and he denied that, but he told the doctors about it, and his Honour made a finding against him on that, but he generally found him to be a witness of credit.

HEYDON J:   Well, there is the use of the tent issue as well.

MR TOOMEY:   Yes, that is correct, your Honour.  I do not think his Honour referred to that as going to his credit, but it is true.  There was, however, evidence – he had said that it was 20 times a year.  It was proved, as I remember, that it was twice a year.  So it was not that it never happened, but that it happened at a very much less degree than he had said. 

Your Honours, can I just take you to the evidence of Mr Buono.  Mr Buono ran the factory next door.  He had a company which ran an extruding business, and he made those nets that go around oranges.  When you buy a bag of oranges, you buy one of Mr Buono’s nets.  His premises were next door to the stone yard of Dasreef.  He moved in in 2000 and at the top of page 292 – I will take your Honours to the evidence of the frequency – but:

Because we were on the ground floor so you cannot visually see over the fence what they were doing.  So we would not go over there purposely trying to look at what they’re doing, it’s not our job.  So we were only concerned with what was affecting us and when that was affecting us we used to jump, either me or other people would jump on some cardboards and start yelling to them, “Stop the damn dust” and also depending on where the wind was coming from as well . . . 

How often, how many days a week, how many weeks a year would there be dust.   A---On our premises or overall.

Overall.   A---Well, overall the visual dust I’d say three times, three or four times a week, I’d say.

And for how long each day.   A---Look, I wouldn’t say continuously eight hours a day, they do stop, so I don’t know it’s hard for me to put an average on that particular timing . . . 

Was it only a few seconds.   A---No, no, definitely not few seconds, it’d be for hours.

When the wind was blowing in the wrong direction and this is when you were on the ground floor did the dust get into your premises.   A‑‑‑Yes, the dust used to get on our cars, all our parked cars used to get in there, my wife or ex-wife, she suffers from asthma and we were working in the office and she used to get sick out of it . . . 

And the other workers with asthma as well, they were having lots of problems and lots of complaints and that is what is happening.

Mr Buono gave evidence that he started complaining to the council and it went on for about three or four years and then it was stopped.  That, of course, was emanating from the stone yard and the plaintiff was in the stone yard.  So to wave a hand at it and say he was a cranky neighbour, I am not suggesting that is the phrase my learned friend used, but he certainly indicated that it was not important.  It was important all right, it was very important and it was being created by Dasreef. 

Your Honours, I was going to take you to the Court of Appeal finding on the attacks made on Dr Basden.  The first is at page 671, paragraph 33 and the first of the critical paragraphs my learned friend read to you.  I mean critical in the sense that they were critical of the course followed by counsel and the primary judge.  At 35:

The opinion of Dr Basden referred to by the primary judge at [72] of his reasons ([18] above) was said by the appellant not to be one which he could give because of a lack of relevant expertise in measurement of silica in dust.

Then in 36 the learned President referred to the paragraphs of the primary judgment and parts of the cross‑examination and he said –

It would be burdensome to set out, verbatim, all the examination and cross‑examination.  There was, however, ample material from Dr Basden’s evidence to support the conclusion that he had the relevant expertise to proffer an opinion concerning the measurement of silica dust in the way he did.

37       The material recited by the primary judge is sufficient to permit that conclusion.  Dr Basden stated clearly that he had undertaken work in the past to determine the amount of dust in many situations.  He said that he had measured dust clouds.  He said his opinion was just the sort of opinion that he has drawn in the past on many occasions.  If he was accepted in this evidence (as he was) his experience was established.  Dr Basden’s or al evidence was contained over forty pages at the hearing on 5 November 2008.  It revealed a deep and extensive experience with dust, including silica dust, in industrial and occupational health and safety contexts.  This involved measurement, ventilation and personal protection equipment.  He was clearly familiar with measurement techniques.  I would particularly refer to the following pages of the transcript . . . 

38       Whether or not the opinion was acceptable or whether it suffered any particular defect is another thing.  Dr Basden had the background and relevant expertise to proffer an opinion about the concentration of airborne silica dust.

The asserted lack of expressed reasoning

39       The appellant submitted that, conformably with the reasons of Heydon JA (as his Honour then was) in Makita (Australia Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, the opinion in the report of Dr Basden relied upon by the primary judge just was not rationally explained by Dr Basden. The report itself contained some (though limited) elucidation of the basis of the conclusion. The opinion must, however, be assessed in the light of the whole of Dr Basden’s evidence. Dr Basden was given assumptions that included the following:

“Mr Hawchar is suffering from silicosis allegedly contracted through the inhalation of silica . . . between 21 October 1999 and May, 2005.  During this period Mr Hawchar was employed as a stone worker who was involved in cutting and laying stone, usually sandstone.  Depending on the nature of the job, Mr Hawchar on a daily basis spent from one hour to all day cutting stone, usually sandstone, and generally by power tools.  This operation generated large quantities of airborne dust.  While performing this work, Mr Hawchar at all times wore a mask provided by his employer -

Now, I might say, your Honours, that that is an assumption which is too favourable to the appellant because he did not at all times wear a mask.  He only wore a mask at his employer’s instruction when he was using the angle grinder.

Mr Hawchar also alleges –

and then there is the tent which was not accurate.  Dr Basden:

saw the DVD which was in evidence showing cutting of sandstone at Dasreef’s premises.

In his report, Dr Basden said -

and then there is set out the passage which was read to you by my learned friend.

The cross-examination of Dr Basden revealed that his opinion was not based on a precise measurement or a view expressed with precision, but rather an estimate drawn from his experience.  It is clear from the extract recited by the primary judge at [77] of his reasons that Dr Basden’s view was that it was obvious from his experience that the dust concentrations were very high based on his knowledge of Dasreef’s practice and from applying his experience to that knowledge.

Now can I take your Honours back to paragraph 77, it is on page 594.  His Honour set out immediately preceding that, part of the cross‑examination, and then he said:

After these exchanges, when asked upon what basis did 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 –

May I point out again that that is that permitted by the standard which of course is respirable silica –

Dr Basden 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 do not know what the relevance of that is.  Of course it is 0.2 which is the standard.

I’ve written some reports which actually have a photograph of 10 mg –

which is 50 times the standard –

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 be very high.

Now, what Dr Basden was doing was saying, I have taken measurements and I have known that what the appearance of the dust was in the room where I have taken the measurements, and you could barely see anything with 10 milligrams, which is 50 times the permissible concentration under the standard.  He is saying, so when you get clouds of dust, when you get the amount that I saw, then ultimately he said a thousand or more times.  Now, in our respectful submission, that was a perfectly permissible method of approaching the subject.  The question was essentially not whether the concentration of dust exceeded the standard or not.  The question was whether the concentration of dust was such that it was foreseeable that it could injure the plaintiff unless certain steps were taken and that those steps were not taken.

It is plain, as the Court of Appeal said, that his Honour found it central to his Honour’s decision that it was more than 0.2 of a milligram. We say that in arriving at an opinion that it could be a thousand times more, Dr Basden was doing what the section permits him to do. He was applying his specialised knowledge gained from study, training and experience and he arrived at a conclusion which was clearly admissible. May I say that the criticism by the appellant is in any event largely destroyed by the cross‑examination on the voir dire because he was cross‑examined as to how he arrived at it and he said – and if it is apparent, as we say it is, that the method he used was based on his specialised knowledge, what is the question? It is there. He has satisfied section 79. Your Honours, can I turn to the last question, the second question ‑ ‑ ‑

FRENCH CJ:   Just before you do, the assumptions referred to at paragraph 39 in the Court of Appeal, that presumably was in a letter of instruction to Dr Basden?

MR TOOMEY:   Yes, your Honour, that is correct.

FRENCH CJ:   That is not in the papers with us.

HEYDON J:   No, it is on page 315, paragraph 6 of his report.

FRENCH CJ:   Sorry.

HEYDON J:   That is a quotation from paragraph 6 of the report.

MR TOOMEY:   Yes.

FRENCH CJ:   Thank you.  Yes, all right.

MR TOOMEY:   Thank you, your Honour.  Your Honours, can I first say this?  We say that the use his Honour made of his position as a judge of a specialist tribunal can have no effect on the outcome of a case, because what his Honour did was to repeat, or to express as part of his reasons that which had been given as expert evidence by Professor Henderson.  His Honour said:

Of greatest significance is the fact that Mr Hawchar suffers from silicosis.  The Dust Diseases Tribunal ‑ ‑ ‑

GUMMOW J:   What paragraph is this, Mr Toomey?

MR TOOMEY:   I am sorry, your Honour, 87 on page 599:

The Dust Diseases Tribunal is a specialist jurisdiction and I am permitted to take into account my experience that this disease is usually caused by very high levels of silica exposure

His Honour cited the judgment of Justice Kirby ‑ ‑ ‑

GUMMOW J:   Was there not plenty of evidence by the witness Henderson about this?

MR TOOMEY:   Yes, 93, your Honour, on page 601:

Professor Henderson says that short latency intervals are unusual –

and that is referring, of course, to the fact that Mr Hawchar had been employed for only five and a half years –

and that latency intervals of about 5‑10 years characterise accelerated silicosis, suggesting that Mr Hawchar’s silica exposure was intense.  Professor Henderson attributes Mr Hawchar’s silicosis to a history of exposure to silica dust over a period of six years beginning in 1999.

His Honour sets out at 98 and following, from 602 on, Professor Henderson’s academic experience and his publications and so on.  Included in Professor Henderson’s experience, but not his academic studies, was work with epidemiology.  His specialty was pathology and he had been the Professor of Pathology at Flinders University.

KIEFEL J:   I see there is a reference to his background and his conclusion in that regard at paragraph 106 on page 605.

MR TOOMEY:   Thank you, your Honour, yes.  That could be misleading, your Honour, because that is referring to the relationship between silicosis and scleroderma.

KIEFEL J:   Yes, I see.  Thank you.

BELL J:   In Professor Henderson’s report at appeal book 289, line 33 and line 34, he says:

It must be emphasised that silicosis refers to diffuse/multinodular lung disease as a consequence of inhalation of silica dust –

so that would appear to be consistent with the ‑ ‑ ‑

MR TOOMEY:   Indeed, your Honour, I think it appears from the evidence that the ingestion of silica is the only cause of silicosis.  So he has it, he has developed it in a short period of time, that must surely inform the weight given to Dr Basden’s evidence.  I can see that it would not go to the admissibility, but it certainly would affect the weight of Dr Basden’s evidence.

Our submission, your Honours, is that the exercise that the learned trial judge undertook at paragraph 87 was unnecessary.  He accepted Professor Henderson in a number of places in the transcript.  He clearly regarded him as a witness of credit.  Henderson said, high latency, intense exposure to – I am sorry, short latency, intense exposure to silica.  In our respectful submission, it is irrelevant to the outcome of the case below, or

should have been, and to this case, whatever his Honour did.  With respect, we acknowledge that there may well be a question of natural justice if a judge without putting a party on notice says, I am going to take – in his judgment says, I am exercising my special knowledge that you do not know about and I did not tell you about and this is the result of it.  It is a bit tough, but we say it does not matter.  May it please your Honours.

FRENCH CJ:   Thank you, Mr Toomey.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I deal with a number of matters, first of all dealing with the question of the admissibility issue?  Our learned friend’s argument seemed to be that what was being done was to reintroduce, as was put, a basis rule, and reference was made to the Australian Law Reform Commission Report.

Your Honours, the basis rule there referred to does seem rather different from that which our learned friend suggests we are trying to advance. I referred your Honours earlier to paragraph 750 of the Law Reform Commission’s Report. It is, I think, the last page of the document, or the second last page of the document, where what is set out there as the basis rule that is not adopted is rather different, in our submission, from the suggested correct interpretation of section 79. Could we note also, your Honours, that the basis rule which is referred to by Justice Branson at paragraph 10 of Sydneywide is really a quotation from the Law Reform Commission’s Report at that reference?

Your Honours, our learned friend referred, I think, to a geologist or a mining engineer and it was said that persons with appropriate qualifications do not always have to give the detail of why they say something, but that, as has been observed on a number of occasions, depends on what the question is, as it were, what is the issue.  Now, no doubt, a person who is a geologist could give an opinion that something was copper ore without too much need to explain that he had studied copper ore and seen copper sulphate and things of that kind in the past, but if the issue on which he sought to give evidence was that something was not copper, that the mine had been salted – to use the old expression – then one would expect the need to be rather more put in the – to support the opinion that that was so.

Your Honours, could we just say also that in relation to the matters in issue in the case, if one goes to volume 1 of the appeal books one can see at page 15 – the heading is on the preceding page, page 14, “Particulars of Breach of Statutory Duties” – when one goes to paragraph e) on page 15 that it is very clear that one of the matters in issue was the question whether the standard had been exceeded, and your Honours, that is a matter on which, presumably, the report of Dr Basden was tendered, that being the only evidence in that regard.

Could I come, your Honours, to the question of the quantity of respirable dust, and may I just take your Honours to three references in that regard?  The first is at page 118 in volume 1, and you will see in the passage commencing at about line 42:

You were expressing the opinion that the level of dust in that cloud of dust produced by the grinder during the time that the grinder was operating would have greatly exceeded the level of point 2 milligrams per cubic metre.   . . . 

But you were not seeking to be precise as to where it would have exceeded it by five times or 500 times.   A---More like 500 or a thousand times is what I stated there.  There would have been in those clouds that I witnessed at that time something of the order of a fraction of a gram, point something of a gram, not point 0‑something or other, or point double 00‑something of a gram.

He is speaking of in the clouds.  That appears to be a clear reference to being in the clouds.  At page 109 at about lines 29 to 49 on the page he was speaking – in particular, if one goes to line 40 he said:

I mean there’s a lot of dust in a visible cloud and it has a long probability spread part of which of course is going to be in the respirable size reach but as for the amounts, no, without actually taking measurements it would be difficult to quantify exactly.

Your Honours, I am abbreviating it.  Then he says in the next answer, or he agrees that –

One of the reasons for the inability to quantify in any precise way is because generally speaking it is the larger particles which are visible.

Your Honours will see the next question and answer.  Then if one goes to the primary judge’s reasons at paragraph 77 and the passage that is there quoted, your Honours will see the last three lines of the passage quoted:

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.

Your Honours, if one actually goes back to what is said at page 320, it seems pretty apparent that the figure he says of about 1000 times is something related to the dust cloud, as distinct from the respirable fraction.  Your Honours, so far as Mr Buono’s evidence is concerned, your Honours will recall what appears in paragraph 33 of the primary judge’s reasons at page 582 – it is at the bottom of that page – that most of his work was done “away from the yard on‑site”, and your Honours, also, if one goes to paragraph 40 of the reasons, that is where the judge’s view of Mr Buono’s evidence commences, and one sees what parts of his evidence were accepted and what the summary of them was.

Could I come then, your Honours, to the question of the specialist Tribunal and it is said that the judge’s use of his position could have no effect on the outcome of the case.  Your Honours, the exercise by the judge of what he said at paragraph 87 was unnecessary.  Your Honours, could we say two things?  What it meant was that the witnesses in the case became not just Professor Henderson, but Professor Henderson and the judge, and it does involve moving from the judicial seat to, in a sense, the witness box, your Honour.

The second thing about it, your Honours, is that it is one thing to say it is unnecessary for the judges to have done that, the other thing we would say is that it was wrong for him to do it.  Your Honours, those are our submissions.

FRENCH CJ:   Thank you, Mr Jackson.

MR TOOMEY:   I am sorry, your Honours, there is an article written by your Honour the Chief Justice in the Australian Business Law Review which contains a statement of opinion relevant to this fact and to this case, and we have it here - I thought it had been copied, it has just been copied ‑ ‑ ‑

FRENCH CJ:   Well, I think you have cited it.  If anyone wants to look at it, I am sure they will.

MR TOOMEY:   No doubt your Honour knows what it says.  Could we send it in, your Honours?

FRENCH CJ:   I think you have made a reference to it in your oral outline, have you not - your outline of oral argument?

MR TOOMEY:   We have, your Honour, but we will send it in so your Honour knows we are not misquoting it.

FRENCH CJ:   All right.

MR JACKSON:   Your Honours, also there was a – I think in response to your Honour Justice Hayne, I said we would provide some material.  It is a question when your Honours want us to do it by.

FRENCH CJ:   Seven days.

MR JACKSON:   Thank you, your Honours.

FRENCH CJ:   We will reserve our decision.  The Court adjourns until 9.45 tomorrow for pronouncement of orders.

AT 4.05 PM THE MATTER WAS ADJOURNED