Dunning v BHP Billiton Limited

In the Federal Court of Australia, the case of Dunning v BHP Billiton Limited involved a claim for damages arising from the development of mesothelioma, a disease caused by exposure to asbestos. The plaintiff alleged that his condition was due to his employment with the defendant, BHP Billiton Limited, during which he was exposed to asbestos. The court was tasked with determining a range of legal issues, including whether a hierarchical approach to evidence was appropriate, the foreseeability of the plaintiff's injury, and the state of knowledge regarding asbestos health risks within the defendant organisation. The court also had to assess whether the defendant breached its duty of care and whether certain standards and advice could be relied upon to mitigate liability.

The court examined the hierarchical approach to evidence, considering whether certain documents should take precedence in resolving factual issues, and the method for assessing the credibility of witnesses. It addressed whether non-expert witnesses could identify asbestos and the foreseeability of the plaintiff's injury. The analysis extended to the defendant's actual and constructive knowledge of asbestos health risks in 1979 and the identity of the individual within the corporation who held this knowledge. Furthermore, the court considered whether the defendant could rely on the National Health and Medical Research Council (NHMRC) standards and advice from a reasonably competent occupational hygienist to exclude other learnings. The court scrutinised whether the defendant breached its duty of care, if the NHMRC standard could be used as a defence, and whether practical alternatives were available to mitigate risks in the blast furnace environment.

The court concluded that the defendant was liable for the plaintiff's mesothelioma, finding that the disease was caused by the defendant's negligence, considering the cumulative effect mechanism of causation. The court found the defendant in breach of statutory duty under the Factories, Shops and Industries Act 1962. In assessing damages, the court determined that the Malec v Hutton discount should apply due to the possibility of mesothelioma remission and that damages should not include aggravation or exacerbation of the plaintiff's depressive condition resulting from litigation. The final order was for judgment and verdict for the plaintiff in the sum of $2,236,959.57.