Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) - [2006] WASC 310

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HANNELL -v- AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310

CORAM: LE MIERE J

HEARD: 2-5, 8-10 MAY, 28-30 JUNE 2006

DELIVERED : 22 DECEMBER 2006

FILE NO/S: CIV 2412 of 2005

BETWEEN: DAVID RICHARD HANNELL
Plaintiff
AND
AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) (ACN 000 035 512)
Defendant

Catchwords:

Torts - Negligence - Personal injury arising from exposure to asbestos - Whether duty of care exists - Whether injury foreseeable - Class of persons for purposes of assessing foreseeability is a home handyman - Injury reasonably foreseeable to person in the defendant's position

Torts - Negligence - Personal injury arising from exposure to asbestos - Duty of care - Scope of the duty of care - Duty to take reasonable care to avoid injury being suffered by those using the product as intended or in a normal manner

Torts - Negligence - Personal injury arising from exposure to asbestos - Duty of care - Whether defendant negligently breached duty of care - Whether warnings and cautions were sufficient to discharge duty - Turns on own facts

Torts - Negligence - Personal injury arising from exposure to asbestos - Breach of duty of care - Whether breach caused or materially contributed to plaintiff's injury - Causation in fact - Whether defendant must discharge an evidential onus following plaintiff establishing prima facie case - City of Stirling v Tremeer [2006] WASCA 73 applied

Torts - Negligence - Personal injury arising from exposure to asbestos - Assessment of damages - Assessment of damages for non-pecuniary loss

Legislation:

Civil Liability Act 2002 (WA), s 5B(1), s 10A(1)

Result:

Claim allowed
Judgment of $537,032.99 awarded

Category: A

Representation:

Counsel:

Plaintiff: Mr J R C Gordon
Defendant: Mr G M Watson & Mr A J Power

Solicitors:

Plaintiff: Slater & Gordon
Defendant: Minter Ellison

Case(s) referred to in judgment(s):

Abadon v The Queen [1983] 1 WLR 126
Barker v Corus UK Ltd [2006] UKHL 20
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Brawski v Quayle [1966] VR 382
Chappel v Hart (1998) 195 CLR 232
City of Stirling v Tremeer [2006] WASCA 73
Clyne v State Rail Authority of New South Wales [2005] NSWDDT 4
Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469
Donoghue v Stevenson [1932] AC 562
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Easther v Amaca Pty Ltd [2001] WASC 328
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32
Gaunt v Amaca Pty Ltd, unreported; Ddt of NSW (Curtis J); Library No 151; 28 August 2003
Hart v Amaca Pty Ltd [2004] NSWDDT 10
Lynch v Amaca Pty Ltd [2004] NSWDDT 1
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
McGhee v National Coal Board [1972] 3 All ER 1008
McGilvray v Amaca Pty Ltd [2001] WASC 345
Misiani (as Executor of the Will of Misiani (dec)) v Welshpool Engineering Pty Ltd (in liq) [2003] WASC 263
Naxakis v Western General Hospital (1999) 197 CLR 269
R v Abadon [1983] 1 WLR 364
Rosenberg v Percival (2001) 205 CLR 434

Seltsam Pty Ltd v McNeill [2006] NSWCA 158
Sharman v Evans (1977) 138 CLR 563
Skelton v Collins (1966) 115 CLR 94
Smith v Sydney Water Corporation Ltd [2000] NSWDDT 13
State of New South Wales t/a New South Wales Department of Agriculture v Allen [2000] NSWCA 141
Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449
Wilsher v Essex Area Health Authority [1988] AC 1074
Wyong Shire Council v Shirt (1980) 146 CLR 40

Case(s) also cited:

Adelaide Chemical and Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514
Amaca v Wallaby Grip [2005] NSWDDT 41
Anderson v Enfield City Corporation (1983) 34 SASR 472
Bale v Seltsam Pty Ltd [1996] QCA 288
Barnes v Irwell Valley Water Board [1939] 1 KB 21
Barrow and Heys v CSR Ltd, unreported; SCt of WA (Rowland J); Library No 7231; 4 August 1988
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Best v Yellow Express Carriers Ltd (in liq) [2004] NSWDDT 46
Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121
Bolton v Stone [1951] AC 850
Browne v Cockatoo Dockyard Pty Ltd (1999) 18 NSWCCR 618
Chance v Alcoa of Australia Ltd (1990) A Tort Rep 81-017
Chapman v Hearse (1961) 106 CLR 112
Clark v Kramer [1986] WAR 54
Cockatoo Dockyard Pty Ltd v Browne [2001] 21 NSWCCR 544
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469
Cominco Ltd v Westinghouse Canada Ltd (1981) 127 DLR (3d) 544
Commonwealth of Australia v Elliott [2004] NSWCA 360
Commonwealth v McLean (1996) 41 NSWLR 389
Comstock v General Motors (1959) 78 ALR 2d 449
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
CSR Ltd v Wren (1997) 15 NSWCCR 650
CSR Ltd v Young (1998) 16 NSWCCR 56
Drakos v Woolworths (SA) Ltd [1991] 56 SASR 431
E M Baldwin & Son Pty Ltd v Plane (1999) A Tort Rep 81-499
Eaton v Carrier Air Conditioning Pty Ltd [2004] NSWDDT
Flannery v Shire of Leonora [2001] WASCA 47

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hall v Tarlinton (1978) 19 ALR 501
Hughes v Lord Advocate (1963) AC 837
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Jones v Dunkel (1959) 101 CLR 298
Jsekarb Pty Ltd v Plane (1999) A Tort Rep 81-499
Julia Farr Services Inc v Hayes (2003) 25 NSWCCR 138
Kars v Kars (1996) 187 CLR 354
Kingsgrove RSL v Spasevski [2002] NSWCA 342
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Lee Transport Co Ltd v Watson (1940) 64 CLR 1
Levi v Colgate-Palmolive (1941) 41 SR(NSW) 48
Margereson v J W Roberts Ltd [1996] PIQR 154
McNeill v Seltsam Pty Ltd [2005] NSWDDT 51
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Mokta v Metro Meat International Ltd [2005] WASCA 143
Morgan v Tame (2000) 49 NSWLR 21
Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383
Nagle v Rottnest Island Authority (1993) 177 CLR 423
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Neill v New South Wales Fresh Food and Ice Pty Ltd (1963) 108 CLR 362
Nicholson v Atlas Steel Foundry & Engineering Co Ltd (1957) 1 All ER 776
Page v Smith [1996] 1 AC 155
Paul v Rendell (1981) 55 ALJR 371
Perre v Apand Pty Ltd (1999) 198 CLR 180
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Purkess v Crittenden (1965) 114 CLR 164
Qantas Airways Ltd (No 2) v Cameron (1996) 68 FCR 367
Rentz v Seltsam [2004] NSWDDT 15
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [1999] NSWDDT 5
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2001] NSWCA 461
Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 2) [1987] VR 281
Seltsam Ltd & Manufacturers Mutual Insurance Ltd v Minahan (1996) 13 NSWCCR 410
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Shire of Brookton v Water Corporation [2003] WASCA 240
Smith v Leech Brain & Co Ltd [1962] 2 QB 405
Stevedoring Industry Finance Committee v Gibson (2000) 20 NSWCCR 417
Sullivan v Moody (2001) 207 CLR 562

Suosaari v Steinhardt [1989] 2 Qd R 477
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Sydney County Council v Furner (1991) 7 NSWCCR 210
Tame v State of New South Wales (2002) 211 CLR 317
Todman v Victa Ltd (1982) VR 849
Todorovic v Waller (1981) 150 CLR 402
Van Gervan v Fenton (1992) 175 CLR 327
Walton & Walton v British Leyland UK Ltd, unreported; HCt of UK; 12 July 1978
Western Australia v Watson [1990] WAR 248
Wintle v Conaust (Vic) Pty Ltd [1989] VR 951
Workers' Compensation (Dust Diseases) Board v Kelly (2000) 20 NSWCCR 234
Wren v CSR (1997) 15 NSWCCR 45
Wright v Dunlop Rubber Co Ltd (1972) 13 KIR 255
TABLE OF CONTENTS

The plaintiff
The plaintiff is diagnosed to be suffering mesothelioma
Plaintiff's exposure to asbestos
The defendant
The plaintiff's case in overview
Some matters admitted or clearly established
Time of original construction

Issues

Asbestos
The background exposure to asbestos

Mesothelioma
Plaintiff's exposure to asbestos – the detail
The duty of care
Reasonable foreseeability
The information available
Professor Musk
Dr James Leigh
Professor Henderson
Dr Eva Francis
Available literature
Evidence of Peter Russell
Evidence of Mr Lawless
Defendant's answers to interrogatories
Available literature and constructive knowledge of dangers to health consequential upon exposure to asbestos
Documents from defendant's discovery
What the defendant knew
What the defendant would have learnt upon enquiry
Foreseeability and the duty of care
Defendant owed a duty of care
Scope of duty of care
Breach of duty
Warnings and cautions

Advertising

Causation
Development of mesothelioma
Relative risk
Estimates of plaintiff's handyman exposures

Dr Francis
Causation in fact – Legal principles
Legal onus on plaintiff
Analysis of evidence concerning causation
Mr Rodgers' opinion
Admissibility and weight of expert evidence
Assessment of Mr Rodgers' evidence
Evidence of Dr Francis

Evidence of Professor Berry
Evidence of Professor Breslin
Defendant has not discharged evidential onus
Alternative approach to causation
Causation in fact – conclusion
Legal causation
Liability – conclusion

Damages
Agreed heads of damages
General damages
Loss of expectation of life
Loss of future earning capacity
Loss of superannuation
Future care and services
Future out of pocket expenses
Summary of damages

LE MIERE J:

The plaintiff

The plaintiff was born in the United Kingdom on 23 October 1942. He grew up in Islington, London. After leaving school aged 15 years he worked as a gardener and for a short time also drove a black cab part‑time around London as well as doing his day job as a gardener.
In 1981 the plaintiff emigrated to Western Australia with his family. In or about May 1982 the plaintiff and his wife purchased and moved in to 190 Erindale Road, Hamersley. The plaintiff has lived there ever since.
By the end of November 1981 the plaintiff got a job at the Royal Perth Hospital as a gardener. He worked at the rehabilitation annex at Shenton Park until 1987. In 1987 the plaintiff was employed by the Perth Zoo as a horticulturalist.

The plaintiff is diagnosed to be suffering mesothelioma

In about October 2005 the plaintiff noticed symptoms of a niggling pain under his right ribs. On 4 November 2005 he saw his general practitioner, Dr Levy. Dr Levy sent the plaintiff for a chest x‑ray and subsequently referred him to Sir Charles Gairdner Hospital where he was admitted on 9 November 2005. The plaintiff underwent tests and investigation. On or about 11 November 2005 the plaintiff was informed that he had mesothelioma. The plaintiff subsequently underwent two surgical procedures including a pleuropneumonectomy on 30 December 2005. A pleuropneumonectomy is a surgical procedure involving the removal of the pleura surrounding the lung. Since the operation the plaintiff has completed two cycles of chemotherapy. The plaintiff resigned his employment with the Perth Zoo on 24 March 2006.
The plaintiff has malignant mesothelioma. Mesothelioma is an aggressive cancer. The average expectation of survival is about nine months after diagnosis. Following the pleuropneumonectomy and chemotherapy the plaintiff had an expectation for survival of three to four years. The cause of the plaintiff's mesothelioma is asbestos exposure.

Plaintiff's exposure to asbestos

The only exposure to asbestos that the plaintiff can remember involved working with asbestos cement products at his home at 190 Erindale Road, Hamersley. In 1983 the plaintiff dismantled a Hardiplank woven asbestos fence from the centre of his backyard and relocated it. He

broke and cut asbestos cement sheets using a handsaw and asbestos cutters and used an electric drill. In 1985 he sanded back and repainted the asbestos cement eaves of his house using a wire brush and sandpaper working above his head. In 1990 he painted the corrugated asbestos fence on both sides of his property, brushing down the sheets with a wire brush before painting over them. I will sometimes refer to the plaintiff's work with asbestos cement products at 190 Erindale Road in 1983, 1985 and 1990 as the plaintiff's handyman work and his exposure to asbestos in the course of that work as the plaintiff's handyman asbestos exposure.

The defendant

The defendant was previously named James Hardie & Coy Pty Ltd. It manufactured and sold products containing asbestos, including asbestos cement building products until the 1980s. I will sometimes refer to the defendant as James Hardie.

The plaintiff's case in overview

The plaintiff says that each of the asbestos cement products which were the source of his exposure to asbestos were manufactured and supplied to the original constructors of the house and fences by the defendant. The plaintiff's case is that the defendant, as manufacturer and supplier of the products, owes a duty to the class of persons including the plaintiff to take reasonable care to ensure that the plaintiff is not exposed to the risk of injury from exposure to, and the inhalation of, asbestos. The class of persons are handymen who might cut, drill, scrape, brush or otherwise deal with the asbestos cement products manufactured by the defendant. The plaintiff says that the defendant had a duty to warn the plaintiff and other persons dealing with the asbestos cement products of the dangers of dealing with them by affixing suitable warning notices and by advertising the dangers. The plaintiff says that the defendant breached its duty of care to the plaintiff by failing to do so and that that failure caused or contributed to the plaintiff's exposure to asbestos. The plaintiff's case is that his exposure to the defendant's asbestos cement products caused or contributed to him contracting mesothelioma.

Some matters admitted or clearly established

In his closing submissions the defendant's senior counsel admitted that the plaintiff suffers pleural mesothelioma. In any event, that was established by the evidence.

The plaintiff pleads that the Hardiplank woven fence, the asbestos sheets constituting the eaves of the house and the corrugated asbestos fencing sheets were manufactured and supplied by the defendant to the person who built the house and constructed the fences. In its closing submissions the defendant conceded that the asbestos cement building products to which the plaintiff was exposed were probably manufactured by it. In any event, I find that is established by the totality of the evidence, having particular regard to the evidence of Mr Warwick Gazzard.
The defendant's asbestos cement building products were sold through hardware stores and timber yards. I find that the asbestos cement products which were the source of the plaintiff's handyman asbestos exposure were manufactured by the defendant and supplied by the defendant to a person or persons who directly or indirectly supplied those products to the original constructors of the house and fences at 190 Erindale Road.

Time of original construction

The plaintiff believes the house at Erindale Road was built about five years before he and his family moved in in May 1982. The certificate of title shows that Plunkett Homes, a project home builder, became the registered proprietor of the property in 1980. I find that the house, including the eaves, the woven Hardiplank fence and the corrugated asbestos sheet fences were constructed in the late 1970s.

Issues

There are two key liability issues, or groups of issues. The first issues concern the duty of care, if any, owed by the defendant to the plaintiff.
The plaintiff says that the defendant owed him a duty to minimise or prevent the risk of injury from asbestos exposure by taking all steps reasonably open to communicate the danger and the means of avoiding it, to the class of which the plaintiff was a member. In his counsel's written closing submissions the plaintiff described the class of which he was a member as "end users" of the defendant's products. The plaintiff submits that the defendant breached the duty of care it owed to him.
The defendant submits that it did not owe the plaintiff a duty of care with the content postulated by the plaintiff. Secondly, the defendant submits that it discharged the duty of care which it owed to the class of which the plaintiff was a member.

The second major issue, or groups of issues, are causation issues. The plaintiff submits that the defendant's breach of duty in fact caused him to contract mesothelioma. That is, the mesothelioma suffered by the plaintiff was caused or contributed to by the asbestos exposures resulting from the plaintiff's handyman activities handling or dealing with the asbestos cement building products manufactured and supplied by the defendant. The plaintiff submits that the defendant's breach of duty of care was a legal cause of the plaintiff suffering mesothelioma.
The defendant submits that it did not cause any injury from which the plaintiff suffers. Further, the defendant submits that, in any event, there was no causative breach of any duty of care.
A third issue, or group of issues, is the assessment of damages.

Asbestos

Before referring to the plaintiff's asbestos exposure in greater detail it is useful to make some brief observations concerning some aspects of the nature and attributes of asbestos.
Asbestos is a naturally occurring mineral, exhibiting a fibrous structural property. There are two classes of asbestos, amphibole asbestos and serpentine asbestos. The difference relates to the characteristics and shape of the fibres: amphibole asbestos has fine, straight fibres; serpentine asbestos has curly or feathery fibres.
There are two commercially viable types of amphibole asbestos: crocidolite, commonly called blue asbestos, and amosite, commonly called brown asbestos. There is only one type of commercially viable serpentine asbestos: chrysotile, commonly called white asbestos. The asbestos cement building products to which the plaintiff was exposed contained chrysotile and amosite.
The asbestos cement building products to which the plaintiff was exposed are a mixture of cement, silica and asbestos. The asbestos comprises in the order of 8 to 15 per cent of the product.

The background exposure to asbestos

An important concept or term is "background exposure". In general, background exposure refers to exposure to asbestos in the general environment. The "background risk" is the risk of contracting mesothelioma as a result of "background exposure".

Professor Henderson, an expert in the field of asbestos‑related disease, said that background asbestos exposure from the environment at large represents general environmental exposure unrelated to the use of asbestos‑containing materials in the workplace or at home, or from significant point sources of asbestos such as factories. Professor Henderson considers that background exposure includes exposures related to the passive weathering of "in place" asbestos‑containing materials, including asbestos‑roofing materials – with very low or unmeasurably low airborne fibre concentrations – and environmental exposure derived from the brakes of passing automobiles. Professor Henderson excludes from background exposure any exposure arising from active disturbance of any asbestos‑containing materials such as asbestos cement building products or insulation materials.
The absence of a recalled history of asbestos exposure is not the same thing as an absence of exposure. Many cases of seemingly "background" mesothelioma can be attributed to forgotten or unrecognised asbestos exposures. I will sometimes refer to asbestos exposure from the environment at large excluding exposure arising from the use of asbestos‑containing materials in the workplace or at home or from significant point sources of asbestos or any exposure arising from active disturbance of any asbestos‑containing materials as ambient environmental exposure. I will sometimes refer to asbestos exposure arising from the use of asbestos‑containing materials in the workplace or at home or from significant point sources of asbestos or from the active disturbance of asbestos‑containing materials as specific exposure.

In general, the other expert witnesses used the terms "background exposure" and "background risk" consistently with the way in which they were used by Professor Henderson.
In cross‑examination Professor Musk, a respiratory physician and expert in treating asbestos‑related diseases, agreed that the members of the background risk group are the group of mesothelioma sufferers who are unable to recall a specific exposure to asbestos. It was put to Professor Musk that repeated studies over the years had demonstrated that between 15 per cent and 30 per cent of mesothelioma sufferers are unable to recall any particular exposure to asbestos. Professor Musk agreed but added: "But that depends on the quality of the questions and the intensity of the questioning process".
In cross‑examination Professor Musk agreed that he and Dr De Klerk had attempted to calculate a background risk for mesothelioma in Western

Australia and that they had expressed the risk as between two and three persons per million persons per annum or between 140 persons per million per lifetime to 210 persons per million per lifetime, assuming a lifetime of 70 years.

I observe that the "background risk" calculated by Professor Musk and Dr De Klerk is not the same thing as the risk of mesothelioma being contracted by persons whose only exposure to asbestos is from ambient environmental exposure. The calculations or estimates of "background risk" by Professor Musk and Dr De Klerk were based on the percentage of recorded mesothelioma sufferers who were unable to recall a specific exposure to asbestos. That cohort includes people who might have suffered specific exposure but who did not recognise or remember the specific exposure or exposures. The risk of mesothelioma caused by ambient exposure is potentially lower than the "background risk" calculated by Professor Musk and Dr De Klerk.

Mesothelioma

The plaintiff suffers pleural mesothelioma. The pleura is a membrane lining the lungs and separating the lungs from other organs of the chest. Mesothelioma was first reported in 1960 in relation to the inhalation of asbestos. Knowledge as to the nature of mesothelioma has accumulated gradually over the years since 1960.
In Australia, mesothelioma is associated with the inhalation of asbestos. Generally speaking, there are three major issues relating to the connection between mesothelioma and the inhalation of asbestos: the dose issue, the fibre type issues and the lag time issue.
The risk of contracting mesothelioma is related to the dose of the asbestos inhaled. An asbestos fibre must be very small before it can be inhaled and retained in the fine airways of the lung. These tiny fibres are called respirable fibres. A dose may be calculated by counting the concentration of respirable fibres in an atmosphere. This is often expressed in terms of the number of fibres in a millilitre of air and abbreviated to the number of "fibres/ml". Calculations of the cumulative dose of asbestos likely to have been inhaled by an individual may be made by multiplying the concentration of asbestos fibres in an atmosphere by the time that an individual was exposed to that atmosphere. The cumulative dose may then be expressed in terms of the numbers of fibres in a millilitre of air over so many years and abbreviated to the number of "fibres/ml years".

The risk of contracting mesothelioma is directly related to the type of asbestos fibre which was inhaled by the individual. Studies have demonstrated that each fibre type has a different propensity to induce mesothelioma. Crocidolite or blue asbestos, is the most potent. Amosite or brown asbestos, is the median in terms of potency. Chrysotile or white asbestos is the least potent.
The risk of contracting mesothelioma is greatly increased by the expiry of time since the exposure – the lag time. Mesothelioma has a long latency period. Asbestos inhaled within 10 years of the contraction of mesothelioma is considered by relevant experts to be causally irrelevant to the contraction of the disease.
Medical science cannot explain precisely how asbestos causes mesothelioma. There are different theories. Dr James Leigh, an occupational physician, explained one theory, involving multi‑stage carcinogenesis through initiation followed by promotion. Professor Bruce Robinson, a chest physician, considered this theory to be unhelpful and outdated. Professor Robinson advanced an alternative theory based upon a prolonged period of irritation and inflammation arising from the inhaled asbestos fibres. Once an asbestos fibre or fibres have initiated the carcinogenesis it is not known whether the inhalation of additional fibres has any role in the development of mesothelioma.

Plaintiff's exposure to asbestos – the detail

The plaintiff remembers three activities at his home that involved working with asbestos products.
The first was moving a Hardiplank fence located about half way down the backyard or garden of the house. The plaintiff did that work in about April or May 1983.
In the course of moving the fence the plaintiff had to take apart the pieces of the fence and cut pieces to fit the new fence line. He did this work over a couple of weekends and a couple of nights after work. He pulled the planks off the post using a claw hammer or screwdriver. Some of the sheets broke in the process. The process of dismantling the fence gave off dust. The plaintiff had to prise the sheets off the posts and handle them by picking them up and placing them towards the side of the property. The process was dusty and the plaintiff got dust on himself and his clothes. He did not wear a mask. He did not try to keep the dust down or avoid the dust. After the sheets came off the plaintiff stacked them up against the fence. He pulled out the fence posts. He dug new holes and

re‑used the fence posts. The plaintiff then handled the sheets again by weaving them through the fence posts. He had to cut quite a number because the length had changed. He cut the sheets with a handsaw and used an old pair of tinsnips. Sometimes the plaintiff cut the sheets by scoring the sheets which would give off some dust and once he scored the sheet he would then break the sheet off. He also cut some of the lengths with a handsaw but the handsaw went blunt and he then used tinsnips. He also had to drill through quite a number of sheets to attach the sheets to the post of the fence. The process of cutting and drilling gave off dust. The plaintiff had to drill the holes into the fence posts. This meant drilling new holes through the asbestos sheeting because the fence was a different length and it needed new holes for the sheets. He used an electric drill. Drilling the sheets gave off some dust. When the plaintiff drilled the sheets the drill would usually be fairly close to his face so he breathed in the dust when he drilled through the sheets. After having moved the fence, there were parts of the fence that needed painting. The plaintiff brushed the sheets back with a wire brush and painted over the sheets. This process also gave off dust and he got dust on him again.

The second exposure occurred in about February or March 1985 when the plaintiff painted all the underside eaves of the house. Much of the paint was flaking off. The plaintiff did the preparation first by brushing, sanding and then washing the eaves down. He did this above his head. He washed the eaves to get any last dirt or dust off. He used a scaffold board and some steps so he could reach the eaves. The plaintiff had some time off work, about a fortnight, and the first week was taken up with the preparation – sanding and brushing back the eaves and filling holes in timbers. The whole job took about a month. The first two weeks the plaintiff was on holiday and doing the job almost on a fulltime basis. For the next two weeks he finished the job on the weekends and a few nights after work. The initial rubbing down took the first week of the plaintiff's holidays. He did not wear a mask and whilst carrying out this work he sanded and brushed the asbestos sheets above his head. This caused a lot of dust to fall down on him. He got dust on his face and eyes and in his mouth as well as over all his clothes.
The third exposure occurred in about February 1990 when the plaintiff painted the corrugated asbestos fence on both sides of his home. The job involved brushing down the fences and the ridge capping. The left fence had lots of bird droppings on it so the plaintiff needed a fairly hard wire brush to get a decent finish on it so it could be ready for painting. Brushing the corrugated fencing gave off a lot of dust. The plaintiff was less than an arm's length away from the fence as he was

brushing and he was often crouching when performing the work. He got dust on his sleeves, hands and clothes and was breathing in dust as he was doing this job. He used a wire brush to brush the entire length of the left fence. On the fence on the right hand side of the property there was hard mould or algae on the corrugated fence which needed to be scrubbed back. The plaintiff used a wire brush to do this. Brushing back this fence gave off dust. The plaintiff got dust on his clothes and breathed it in as he was not wearing a mask. The job took the plaintiff a couple of days.

Apart from the exposures to which I have referred the plaintiff does not remember any other exposure to asbestos. The defendant did not plead that the plaintiff had experienced any exposure to asbestos other than the plaintiff's three handyman exposures arising from using or handling the asbestos cement building products to which I have referred.
The expert evidence establishes that the plaintiff, like every other person living in London and Perth, has experienced ambient environmental asbestos exposure.
Senior counsel for the defendant cross‑examined the plaintiff carefully, thoroughly and at times intensely about other domestic or occupational sources of asbestos to which the plaintiff might have been exposed.
Senior counsel put to the plaintiff that he was unable to say that he had not been exposed to anything which contained asbestos earlier in his life. The plaintiff agreed but said that as far as he is aware he had never been exposed to asbestos. Senior counsel put to the plaintiff that there may have been asbestos in the houses in which he lived in the United Kingdom but of which he was unaware. The plaintiff said that he did not think there was any asbestos and he was pretty sure he never saw any asbestos. Senior counsel put to the plaintiff that he did not know whether the internal walls at some or all of the places he lived in the United Kingdom were themselves constructed of asbestos‑containing material such as fibro. The plaintiff agreed that he would not know and had not looked but said he certainly did not think he ever saw any asbestos. Senior counsel cross‑examined the plaintiff about other possible sources of asbestos to which the plaintiff might have been exposed, such as domestic insulation, sheds at his workplace constructed of asbestos and working on car brake linings. The plaintiff did not recall any asbestos insulation in any of the homes in which he lived, was not aware of any of the sheds at his workplace being constructed of asbestos and denied having worked on any car brake linings.

I find that the plaintiff experienced ambient environmental exposure to asbestos whilst living in the United Kingdom and Perth. There is no evidence that the plaintiff has experienced any specific exposure other than the exposure in the course of his handyman work. The plaintiff may have experienced exposure related to the passive weathering of "in place" asbestos‑containing materials and environmental exposure derived from the brakes of passing automobiles as described by Professor Henderson. Such exposure is part of the ambient environmental exposure.
Senior counsel for the defendant cross‑examined the plaintiff about the most likely domestic and occupational asbestos exposures that the plaintiff is likely to have experienced if he experienced any specific asbestos exposure. As a result of the plaintiff's response to that questioning I find not only that the plaintiff did not recognise or recall any specific asbestos exposure but on the balance of probabilities the plaintiff did not experience any specific asbestos exposure other than the exposure in the course of his handyman activities.

The duty of care

The general principles concerning the existence of a duty of care are reflected in s 5B(1) of the Civil Liability Act 2002 (WA) which provides that a defendant is not liable for harm caused by the defendant's fault in failing to take precautions against a risk of harm unless the risk was foreseeable (that is, it is a risk of which the defendant knew or ought to have known), the risk was not insignificant, and in the circumstances, a reasonable person in the defendant's position would have taken those precautions. In this case, foreseeability is important.
The plaintiff submitted that the case comes within an established category of cases where judicial decisions establish the existence of a duty of care. The plaintiff says that the category is that of manufacturer or supplier and consumer.
In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [29] McHugh J said that it is beyond doubt that a manufacturer of any product owes a duty to a consumer to take reasonable care to prevent the product causing injury or loss to the consumer. In that case the appellant had distributed in Australia canola seed produced in New Zealand. The seed contained a small amount of weed seeds. At the time of the importation no Australian government had declared any of the weeds to be a prohibited weed. The respondent, which conducted a farming business in Western Australia, bought and planted some of the seed which the reseller had bought from the appellant. Shortly after that transaction the Agriculture Department of

Western Australia made declarations which required the eradication of the weed seeds. At trial the appellant conceded that it owed a duty of care but did not elaborate upon the scope of the duty of care. On appeal to the High Court the appellant sought to withdraw its concession. Gummow J at [58] said that it was unnecessary to consider whether the appellant should be permitted to withdraw the concession that, as ultimately formulated by the primary Judge, it owed a duty to the consumers of its canola seed to exercise reasonable care not to expose those consumers to a risk of injury of which the appellants knew or ought to have known. His Honour said that the critical question was whether the primary Judge erred in holding that the appellant breached that duty. Kirby J said at [99] that the concepts of duty, scope and breach represent component parts of a unified notion that must be constantly brought back to the touchstone of reasonableness. His Honour observed that the concession of the existence of a duty of care had been made without much clarity as to the scope of the duty being conceded and that the scope of the duty has significance for the related question of breach. At [159] Hayne and Callinan JJ said that as the respondent's case was presented at trial, the critical question was to identify whether the appellant knew or ought to have known that there was a risk of the sort of injury which it was alleged had been suffered – financial loss occasioned by pursuing a course of action recommended by government authorities to guard against the possible emergence of plants which had been declared to be harmful only after the appellant had distributed the seed and the farmers had acquired it. Their Honours said that only if that sort of loss was reasonably foreseeable by the appellant would the duty asserted by the respondent have been engaged.

In Seltsam Pty Ltd v McNeill [2006] NSWCA 158 the plaintiff, a priest, worked with asbestos cement sheeting purchased retail by a relative and manufactured by the defendant and was exposed to asbestos dust and fibres. The work totalled about 12 hours over several days. The plaintiff was diagnosed with mesothelioma. The New South Wales Court of Appeal held that the case was not one of the cases where judicial decisions establish the existence of a duty of care: Bryson J at [33].
In Seltsam v McNeill (supra) the plaintiff was not at any time the purchaser or the owner of the asbestos sheeting. In this case the plaintiff did become the owner of the asbestos cement products. However, I do not consider that that fact relevantly distinguishes this case from Seltsam v McNeill. The New South Wales Court of Appeal found that at the time the priest was exposed to asbestos it was not a known or reasonably foreseeable risk that home handymen and other low‑intensity, casual end users who worked on asbestos cement products as handymen, not in an

industrial or other controlled situation, not in the course of employment or any like relationship and not for extended periods, exposed to asbestos dust would suffer mesothelioma. The plaintiff was one of an indeterminate class of people who long after the product had been sold by retail might disturb the asbestos in the product by operations such as sawing, drilling or scraping.

The plaintiff submits that this case is distinguishable from Seltsam v McNeill because the evidence in this case is that in 1983, 1985 and 1990 the harm which the plaintiff suffered was a reasonably foreseeable consequence of handyman asbestos exposure whereas in Seltsam v McNeill the New South Wales Court of Appeal held that there was no evidence capable of establishing that there was a foreseeable risk of injury in 1961 to a casual user of asbestos cement sheets as distinct from regular users of asbestos cement sheets with prolonged exposure to dust.
If, as the defendant submits, this case does not come within an established duty of care category then the next question is: was the harm which the plaintiff suffered a reasonably foreseeable result of the defendant's acts or omissions? Furthermore, if the defendant owed to the plaintiff a relevant duty of care it is necessary to consider questions of reasonable foreseeability of harm to the plaintiff from his handyman asbestos exposure in considering the issue of breach of duty. I turn now to consider whether in 1983, 1985 and 1990 there was a reasonable foreseeability of risk of injury from asbestos exposure to the class of persons to which the plaintiff belonged.

Reasonable foreseeability

As part of the "neighbour" principle for determining a duty of care, reasonable foresight is directed to the identity of the plaintiff. In other words, was the plaintiff, either individually or as a member of a class, someone whom the defendant could reasonably foresee would suffer injury as a result of the defendant's conduct? See Donoghue v Stevenson [1932] AC 562.
In Seltsam v McNeill the New South Wales Court of Appeal held that the trial Judge was in error to treat a foreseeable risk of injury to regular users of asbestos cement sheets from prolonged exposure to dust released by cutting, drilling or sawing such sheets, as establishing a foreseeable risk of injury to a casual user exposed to such dust during one or two days work in the open air. In the course of argument in that case the parties distinguished between workers exposed to heavy levels of asbestos in factory situations on the one hand and end users, that is

persons such as carpenters who worked on asbestos cement sheeting on building sites, or other persons who did not work in a factory situation, on the other hand. At [29] Bryson JA said that he did not find end users to be a satisfactory classification because it includes occasional casual users and handymen in the same class as carpenters or other construction workers who work on asbestos cement sheeting, where encounters with the risk of inhalation of dust may take place daily or otherwise very frequently and over extended periods. At [36] Bryson JA said:

"The test of foreseeability is undemanding, but there is no basis for treating it as fictional or nominal, or for equating foreseeability with the limits of the imagination; it must be approached as a test which exists in reality and operates within the limits of the reasonable. It is not real, reasonable or just to adopt one broad class of end users to whom risks of exposure to asbestos were foreseeable. Persons whose exposure to asbestos was reasonably foreseeable include many whose exposure occurred in circumstances altogether different from those of the respondent. Workers who handle asbestos in mining, manufacturing or other industrial operations cannot on a reasonable or just basis be included in the same class as the respondent for purposes of deciding foreseeability. Their exposure was to undiluted asbestos and, as reasonably foreseen, extended to exposure for hours in the course of working days, and to continuous exposure over periods of months or years in a working career. Information which is known or ought to have been known to the appellant with respect to risks to them would be misapplied if it were treated as showing or tending to show some risk of injury relevant to the respondent's position."

At [38] Bryson JA approached the test of foreseeability in this way:
"In considering whether a reasonable person in the appellant's position would foresee that carelessness on his part may be likely to cause injury to the respondent, and whether there was a duty of care to the respondent, the position of the respondent must necessarily be considered at a high level of abstraction; the appellant of course could have no actual knowledge of the respondent himself or of the actual circumstances in which his association with the product exposed him to risk. Stepping from actuality into a higher level of abstraction, the person reasonable foreseeability of risk to whom must be considered is and must remain a home handyman who does not encounter the

product in an industrial or commercial continuing situation, who works on the product for a few hours only on one handyman project, not as part of what is otherwise his working life. It would be an error, a legal error to bring to bear considerations relating to the foreseeability of risk of injury to classes of persons with higher degrees of exposure, either in intensity of involvement in working on the product, or in number of occasions and length of time for which the product was worked on, or otherwise with greater intensity. The respondent is not entitled to rely on conduct which was negligent in the sense that there was a breach of a duty of care to some other persons the reasonable foreseeability of risk of injury to whom was different to foreseeability related to the respondent. In my opinion it would be a legal error to treat all end‑users of a manufacturer of product uniformly for the purpose of considering the existence of the duty of care to them unless in reasonable foreseeability of risk of injury their circumstances placed them in the same class."

In considering what publicly available information should be considered in relation to the issue of foreseeability Bryson JA said at [40]:
"As a class, these home handymen had characteristically far less exposure to risk, for a far shorter time, than building or other industrial workers who handle and shape asbestos cement sheeting in employment situations. Publicly available information should be considered with care before deciding that it has relevance to the reasonable foreseeability of risk to a class of persons to which the respondent belonged."
In this case, counsel for the plaintiff submits that the appropriate class may be considered to be the people in this State who have James Hardie products in their home, or alternatively, all end users of the defendant's asbestos cement products. In Seltsam v McNeill the relevant exposure occurred in 1961. The New South Wales Court of Appeal concluded there was no evidence capable of establishing that there was a foreseeable risk of injury in 1961 to a casual, one off, user of asbestos cement sheets as distinct from regular users of asbestos cement sheets from prolonged exposure to dust. Counsel for the plaintiff submits that the evidence in this case establishes that in 1983 there was a foreseeable risk of injury to handymen and other casual end users of asbestos cement building products. That requires an examination of the evidence.

In this case, the person against whom reasonable foreseeability of risk must be considered is a home handyman or other casual user of asbestos cement building products who does not encounter the product in an industrial or occupational situation. The court must consider whether it was reasonably foreseeable that there was a risk of injury to a member of that class of persons having regard to the information available to the defendant and publicly available in 1983.

The information available

The plaintiff relies on the evidence of eminent experts and in particular Professor Musk, Professor Henderson and Dr Leigh and on the evidence of Dr Francis, an occupational hygienist. The plaintiff also relied on the evidence of former employees of the defendant, Mr Peter Russell, Mr Warwick Gazzard, and Mr James Lawless. The defendant further relies upon the defendant's sworn answers to interrogatories, upon a number of documents taken from the defendant's discovery and upon published scientific, medical and other literature.

Professor Musk

Professor Musk is an eminent respiratory physician. He has many years' experience in treating patients with mesothelioma and other asbestos‑related diseases. He has undertaken extensive research and has authored or co‑authored numerous publications concerning asbestos‑related diseases. In 1992 he was made a Member of the Order of Australia for service to respiratory medicine in the field of asbestos and smoking related diseases.
In his written report (Exhibit H14) Professor Musk gave evidence of the development of knowledge in relation to asbestos‑related diseases by reference to learned works and other literature commencing with the 1898 annual report of the UK Chief Inspector of Factories and Workshops.
Professor Musk referred to J C Wagner (proceedings of the Pneumoconiosis Conference, Johannesburg, February 1959, "Some Pathological Aspects of Asbestosis in the Union of South Africa") and to Wagner, Sleggs and Marchand "Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province" (1960) Br J Ind Med 17:260. Professor Musk said that after the 1959 Johannesburg Conference at which the work of Wagner et al was presented, and after its publication in the British Journal of Industrial Medicine in 1960, knowledge of the effects of exposure to asbestos, even in small amounts was well established. It was by then widely accepted that asbestos could

cause asbestosis, lung cancer and mesothelioma. It was accepted that small doses, particularly of crocidolite could cause mesothelioma. Professor Musk said that mesotheliomas were reported among British shipyard workers who had received only light or intermittent exposure to asbestos dust and Dr Wagner reported on the mesotheliomas he had found in South Africa in people who had not actually worked with asbestos, but merely lived in the vicinity of asbestos mines and mills.

By 1965 Dr Newhouse had reported on cases of mesothelioma she had found among the relatives of asbestos workers in London. Professor Musk said that owing to the abundance of literature generated on asbestos, asbestos‑related disease and asbestos‑related disease prevention from 1965 on it is difficult to single out important individual documents.
After reviewing articles, learned works, standards, regulations and legislation Professor Musk concluded:
"In my opinion the above material would have led a reasonable employer, occupier or product supplier to have been aware of the necessity to minimise the risk of inhalation of asbestos well before the time period involved in this case, and to warn of the potential dangers. By 1961 the serious dangers to health occasioned by even small exposures should have been known by persons responsible for exposing other persons to asbestos and appropriate warnings and safeguards should have been implemented. By the mid 1960s no person should have been exposed to asbestos, especially blue asbestos, without exposure being reduced to a minimum, together with appropriate warnings of the risks to those exposed. The amounts of asbestos to which persons were being exposed can and should have been quantified during the 1960s as a consequence of these serious dangers and risks to health.
By the 1970's medical researchers in the field, were considering not whether there was a safe level of exposure, which had never been asserted, but whether asbestos should be banned completely."
Professor Musk was cross‑examined about a publication of the Australian National Health and Medical Research Council (NH&MRC) described as being the "Code for the Handling of Asbestos by Small Users" and to a report on the health hazards of asbestos published by the NH&MRC in mid‑1981 and other publications. None of the matters put

to Professor Musk, nor his response to them, caused him to qualify his opinions nor did they undermine those opinions. I accept the opinions expressed by Professor Musk.

Dr James Leigh

Dr Leigh is an expert consultant occupational physician. He was the head of the Epidemiology and Surveillance Unit and Co‑ordinator of the Australian Mesothelioma register from 1988 to 1996. In 1999 he was a consultant to the World Trade Organisation on asbestos issues.
In his report (Exhibit H20) Dr Leigh gave evidence about the development of knowledge concerning the hazards of asbestos and the connection between asbestos exposure and diseases including asbestosis and mesothelioma.
It is Dr Leigh's evidence that by 1968 the association between asbestos exposure and mesothelioma was well established.
Dr Leigh says that in 1969 the well known text Hunter's "The Diseases of Occupations" stated the following, in relation to the then draft UK Asbestos Regulations 1968:
"The new regulations apply to factories, some warehouses, ships under construction or in the course of repair. But the Factories Act cannot protect private users. We [sic] know that inhalation of dust from such activities as sawing or sanding material containing asbestos presents the hazard of malignant mesothelioma outside as well as inside industrial situations. It seems not unreasonable, therefore, to insist that materials containing asbestos should be clearly marked to show this, so that adequate precautions can be taken by the users. For instance, amateur handymen sawing materials containing asbestos could easily wear a lightweight dust mask, and either work out of doors or in a well ventilated room."
Dr Leigh says that:
"[I]n 1974 the first major report of the UK Mesothelioma Register (relating to cases diagnosed in 1967 – 1968) described several cases of mesothelioma in insulation workers, building workers, dockers, workers handling asbestos cement products and following hobby exposure incurred when sawing asbestos sheets and drew attention to the possibility of mesothelioma

occurring at low dose … No fibre type distinctions were made. Anderson et al … drew attention to the risk of asbestos related disease, including mesothelioma, from household contact."

Dr Leigh said that in 1976 an authoritative review appeared in American Review of Respiratory Diseases that showed that mesothelioma could be caused by low level exposures. Dr Leigh then concluded that the defendant ought to have foreseen the risks of exposure from 1983 onwards.
Dr Leigh said that in 1970 the NH & MRC published the document "Atmospheric Contaminants, Hygiene Standards for Contaminants of the Air of the Workplace" stipulating an occupational standard for asbestos of 4 fibres/ml for chrysotile and amosite asbestos (crocidolite exposure was assumed to be prevented completely). Dr Leigh was cross‑examined on that standard or standards and subsequent NH & MRC publications. I note that the NH & MRC report on the health hazards of asbestos of June 1981 recommended that the average fibre concentration of the air breathed by the worker throughout a working shift should not exceed 1 fibre/ml in the case of chrysotile and amosite asbestos. However, that recommendation follows the following statements:
"Expert evidence suggests that it is not possible to establish a threshold value below which a carcinogenic effect of asbestos cannot be identified, although some recent evidence suggests that such a threshold may exist. The Subcommittee recommends that exposure to asbestos should, in all phases of the asbestos industry, be reduced to the lowest practicable level by the most efficient technology currently available and enforced through …"
The matters put to Dr Leigh in cross‑examination, and his response to them, did not qualify his evidence‑in‑chief concerning the foreseeability of the risk of injury from occasional or intermittent asbestos exposure. I accept the opinions of Dr Leigh.

Professor Henderson

Professor Henderson is a pathologist. He is a published expert in the field of asbestos‑related disease. In 1999 he was appointed as an expert adviser to the World Trade Organisation in relation to issues surrounding measures concerning asbestos and asbestos‑containing products.
In his report (Exhibit H18) Professor Henderson said:

"The causal relationship between asbestos and mesothelioma had been well established by the late 1980s and early 1990s, and at that time I was aware that no threshold level of asbestos exposure had been delineated below which there is no risk of mesothelioma above background risk: in other words, I and other authorities were aware by that time that mesothelioma could follow exposures to asbestos that were non‑occupational in character – brief and transient and low‑'dose' – including, for example, the development of mesothelioma from asbestos exposures related to 'handyman' – type work on A‑C sheeting material: the development of mesothelioma from bystander, environmental and neighbourhood‑type exposures had been recorded even earlier."

Professor Henderson was not cross‑examined about those matters. I accept his opinion.

Dr Eva Francis

Dr Francis is an expert Occupational Hygienist. Dr Francis was initially employed by the Division of Occupational Health with the Health Department of New South Wales and later employed as a Specialist Occupational Hygienist with the New South Wales Workcover Authority. She has over 28 years of practical experience in the field of occupational hygiene, demonstrating a speciality in the area of asbestos from as early as 1971.
Dr Francis provided an opinion as to the availability of information as to knowledge in relation to hazards to health associated with exposure to asbestos. She was not cross‑examined in relation to that opinion. Her opinion, which I accept, is accurately summarised by the plaintiff as follows:
"(a)From the early 1980s to 1990, and by 1983, asbestos was recognised among occupational health specialists as a carcinogen, with the association of asbestos exposure and lung cancer being reported in medical literature as far back as 1935.
(b)From the early 1980s to 1990, and by 1983, it was recognised among occupational health specialists that there was no threshold of safe exposure to airborne asbestos for mesothelioma induction.

(c)From the early 1980s to 1990, and by 1983, it was recognised among occupational health specialists that each dose of asbestos inhaled by a person increased the risk of that person contracting an asbestos related disease, including mesothelioma."

Available literature

Ms Anne Batt was a medical librarian throughout the relevant period. The effect of her evidence was that there were a large number of available indices at the disposal of a librarian if they were required to obtain information from a particular journal or index and if a particular library did not have a copy of a journal or articles there were extensive co‑operating libraries across the world. It may reasonably be concluded that all of the learned works and published studies referred to by Professor Musk, Professor Henderson and Dr Leigh were available to the defendant in the relevant period.

Evidence of Peter Russell

Mr Peter Russell worked for James Hardie between 1948 and 1970. His evidence was tendered in the form of a written statement. He was not cross‑examined.
Mr Russell commenced employment with James Hardie as a laboratory assistant at the Camellia plant in 1948. In approximately 1959 he was promoted to factory superintendent at the insulation factory, where he was in charge of a labour force of approximately 120.
In 1961 Mr Russell became safety engineer and fire officer. He stayed in this position until 1964. During and before this period Mr Russell became increasingly aware of the dangers to health associated with asbestos exposure. During his time as safety officer, Mr Russell undertook research into the effects that asbestos had on those who were exposed to it by seeking out publications on the subject. The literature that Mr Russell read said that exposure to asbestos dust had a tendency toward cancer. The literature was starting to mention mesothelioma but the main emphasis was on asbestosis. The literature that Mr Russell read made it clear that some workers were affected with asbestosis after relatively minimal exposure to asbestos dust.
In the early 1960s Mr Russell became aware of a conference that was to be held in New York in relation to the dangers of asbestos. Mr Russell obtained a copy of the conference papers. The papers comprehensively

canvassed the asbestos problem, both in the industry and the environment. The gist of what was in the papers was that there was a worldwide serious concern about the dangers of exposure to asbestos and the welfare of people who had already been exposed.

Some time, in around 1963 or 1964, Mr Russell attended a production meeting where they were discussing dust problems within the factory. The meeting was chaired by the branch manager. Also present were the chief engineer, the company's chief medical officer Dr McCullagh, the personnel officer, the superintendent of the factory and a representative of the engineering side of the factory. Senior staff officers were present from the Camellia plant. Mr Russell raised the issue of the asbestos dust hazard for end‑users of the product. He was concerned that people using asbestos products were relying on James Hardie in relation to their safety.
In mid 1963 at a production meeting it was proposed that James Hardie should extend wet processing to include all the treatment of fibre so that the asbestos would be wet from coming to the factory right through to the sheet coming off the machine. Before that, it had been dry treatment of fibre. Mr Russell said that it was necessary to consider that James Hardie did not store a wet product and did not sell a wet product. He said that considerable sawing of the product was done out in the field and that James Hardie should do some labelling of the product or make end‑users aware of the problems with it. Mr Russell raised the fact that there were many people other than workers within the factory who were being exposed to asbestos dust from the product because they were selling a dry product that was to be sawed. Mr Russell urged a warning to the effect that James Hardie owed a moral responsibility, not only to the workers at Camellia, but also the end users of the product. Mr Russell urged that a written warning should be put on the product. He was conscious of builders who were using power saws to cut dry products. He had done some research and come to the meeting with a pie chart showing the number of people using the product outside of the factory. The chart indicated that the majority of users of the product were not aware of the problems associated with asbestos. Mr Russell referred to the moral responsibility of James Hardie because the people who were using the product regarded James Hardie as the major user and any approach James Hardie took to the asbestos problem affected the response of the users.

On one occasion Mr Russell had discussions with Harry Howorth, who was supervising building demonstration homes. Mr Russell asked Mr Howorth if he was aware of the problem of asbestos dust to end users

of the product. Mr Howorth suggested there was no problem because James Hardie sold special hand guillotines that did not produce a lot of dust. These guillotines, however, could only cut flat sheets.

Mr Russell did not see any studies done by anyone else at James Hardie. He was told that it was not a company problem, that it was the end users' problem, not James Hardie's. The company did not want to deal with it.
By 1964 Mr Russell had become distressed by his impotence to do anything about the asbestos problem at the Camellia plant. He decided to take leave to assess his situation. Before taking leave he prepared a detailed memorandum for distribution amongst senior company staff on a confidential basis. The memorandum outlined the development of knowledge concerning the health hazard of asbestos dust exposure. Mr Russell concluded with the observation that asbestos dust was one of the most dangerous of all industrial poisons and that his aim was not to cause alarm but to ensure that James Hardie fully appreciated the possibilities and gave the necessary priority to dust control work.
When Mr Russell returned from leave he took up a position as quality controller in the brake lining division. At some stage in the second half of the 1960s Mr Russell recalls reading papers published in various medical journals on the relationship between asbestos exposure and mesothelioma. One such paper was by Newhouse and Thompson published in the British Journal of Industrial Medicine in 1965. At about the same time Mr Russell became aware that it had been established in America that there was a clear link between asbestos exposure and mesothelioma.
Mr Russell resigned from his employment with James Hardie in 1970.

Evidence of Mr Lawless

Mr Lawless was employed by James Hardie from 1973 to 1988 as an assistant occupational hygienist based at the defendant's factory in Welshpool, Western Australia. He was called by the defendant. Mr Lawless gave evidence that warnings went onto the defendant's products in the 1970s and that it ceased using asbestos in its products in the 1980s.
In cross‑examination Mr Lawless gave evidence that there were a lot of asbestos cement products manufactured by James Hardie in the

community. They included products manufactured using crocidolite between 1955 and 1966. And between 1966 and 1984 amosite was used in the products. There were no warnings on the defendant's asbestos cement products until 1979.

Mr Lawless was aware of concerns expressed about the risk to end users of the product that was out in the community but without warning labels. Those concerns were that people would in an uncontrolled manner take to the James Hardie products to cut them in various ways, or to demolish them or to brush and sand them and that in doing those things they would release asbestos fibres into the breathing space.
There were discussions within James Hardie about how to communicate the risks of the use of the unlabelled product that was out in the community to the users or owners of those products. There were various discussions as to how James Hardie could get this information to people. There was a road show put together where they visited hardware stores and invited hardware store owners in to demonstrate the safe methods. There were all sorts of brochures distributed advising how to use the correct tools and equipment.
Before 1988 James Hardie used brochures to communicate the risks of using asbestos cement building materials in the home in such ways as cutting, demolishing or brushing and sanding. The brochures were displayed in hardware stores advertising the products and giving instructions as to how they were to be safely handled and used. Those advertisements did not appear in daily newspapers. James Hardie advertised their products for sale in daily newspapers.
The senior management of James Hardie was aware of concerns such as those expressed in a letter of 6 September 1983 from Alco Hardware Store operator to Dr McNulty, Commissioner of Public Health in Western Australia. The letter is Exhibit H82. The letter says that Alco had for many years distributed a range of asbestos products manufactured by James Hardie and referred to a recent television programme on Channel 2 that argued a direct connection between asbestos products and various forms of cancer contracted by people who were exposed either to the raw material or the end product for varying periods of time. The letter said that Alco was "concerned with any present or potential health risk to either our customers or staff" and sought advice:

"(a)Whether the range of asbestos products manufactured by James Hardie is in your opinion a health hazzard [sic] either to those handling or the end user.
(b)If in your opinion, they do constitute a health hazzard [sic], what action we should take with regard to the handling, warehousing and sale to the public."

Mr Lawless said that there was concern within James Hardie about the possibility of persons cutting, demolishing, brushing and sanding asbestos cement building products out in the community. The concerns were that they would use inappropriate methods to demolish a house or a wall. The standard practice in those days was to take a sledge hammer to it. The standard practice for trimming the top off a Super Six fence was to take a brush grinder to it. James Hardie believed at that time that using a brush grinder was totally inappropriate and if the safe working methods that James Hardie proposed were used the exposure to people would be minimal. The concern was that the cutting or demolishing or the brushing and sanding would release asbestos fibres and be inhaled and that could cause mesothelioma or some asbestos‑related disease, particularly in tradesmen who were doing it all the time.

Defendant's answers to interrogatories

Answers to interrogatories of the plaintiff for the examination of the defendant are in evidence as Exhibit H117. In its answers to interrogatories 3, 4, 5, 6 and 7 the defendant says that throughout the period from 1978 to approximately September 1990 the defendant was aware that home handymen might use its asbestos cement products and that cutting asbestos cement products could release asbestos fibres or dust into the atmosphere which could be inhaled. In answer to interrogatory 11 the defendant said that it first became alerted during the mid‑1940s to the suggestion that the inhalation of asbestos fibres could cause asbestosis but only in circumstances involving the inhalation over a sufficiently lengthy period of time of considerable quantities of asbestos fibres in visible clouds of dust emanating from the handling of raw asbestos in a factory manufacturing asbestos‑containing products. The defendant says that it first became aware in the mid‑1960s that the inhalation of asbestos fibres could cause mesothelioma but only in circumstances involving the inhalation over a period of time of quantities of asbestos fibres contained in visible clouds of dust emanating from the handling of raw asbestos in a factory manufacturing asbestos‑containing products.

In answer to interrogatory 73 the defendant admitted that it probably saw extracts from a book entitled "Asbestos Work as a Health Hazard" published by the ABC at about the time it was published in 1978. Chapter 5 of the book is entitled "Asbestos and the Consumer". At p 95 the Executive Officer of the Australian Consumers Association, Mr Ettinger, was asked:
"How serious a problem do you think it is, though? Something like an asbestos stove mat or asbestos cement sheets for building? How much of a risk do you think there is?"
Mr Ettinger replied:
"Well, they're not dangerous unless the fibres are released, so that in a stove mat they might not be for quite some time – but why wait till they are? In using building materials there are many more dangers and of course a lot of people do handyman work around the home and they don't know, for example, that they shouldn't use power tools on them. They don't know that it should be damp. They don't necessarily know that they should vacuum up all the dust before they keep going."
Mr Ettinger was then asked what he suggested were practical precautions to be taken with things like asbestos cement sheets or brake linings. He said:
"They probably are necessary in some applications and they are probably cheaper than other substitute products so in using them we feel that asbestos should be kept damp, that people should work outside and up‑wind where possible. They should use hand tools instead of power tools and that definitely they should clear up the dust very quickly if they have any around when they're cutting them."

Available literature and constructive knowledge of dangers to health consequential upon exposure to asbestos

The plaintiff submits that if the defendant wanted to find out more about the likely hazards posed by exposure to its products, the evidence provided by expert witnesses demonstrate that an extremely large amount of literature concerning the occupational and environmental health hazards of exposure to asbestos dust was available upon enquiry in Australia up to and including the early 1980s and there was a massive amount of literature available upon enquiry concerning the occupational and environmental health hazards of exposure to asbestos dust by 1990.

In the course of the trial the plaintiff tendered a vast amount of material which counsel submitted showed what the defendant knew and could have known about the risk from asbestos exposure to persons in the class to which the plaintiff belonged. The material includes seven lever arch files of documents from the defendant's discovery and a further five lever arch files of available literature and other literature references.
It is not practicable to review all of that material in these reasons for decision. In appendices to the plaintiff's written closing submissions the plaintiff summarised documents from the defendant's discovery demonstrating actual knowledge or awareness of asbestos‑related disease, relevant media publications contained within the defendant's discovery and extracts from medical or scientific literature available to the defendant upon enquiry. I have considered those materials but once again it is not practicable to review all of them in these reasons for decision. The medical experts I have referred to summarised the effect of medical or scientific literature and I will not refer to any particular publications. I will refer to some of the material from the defendant's discovery that is of particular significance.

Documents from defendant's discovery

The plaintiff submits that documents contained within the defendant's discovery demonstrate that the defendant knew that asbestosis, lung cancer and mesothelioma could result from brief and transient and low dose asbestos exposure that was non‑occupational in character such as exposures related to handyman work on asbestos cement building products. I will refer to some of those materials that are of particular significance or which were identified by the plaintiff as being of particular significance.
Exhibit P148 is a James Hardie inter‑house letter of 15 February 1966 from J B Reid, the chairman of James Hardie, to Mr Pysden, the personnel manager. The letter attaches a copy of an article given to Mr Reid by Mr Walker, managing director of Goliath Portland Cement Ltd, Tasmania. Mr Reid says that Mr Walker, "is concerned about this sort of information getting around Australia". The article is written by Dr Alfred Byrne who is described as the newspaper's medical correspondent. The author writes:
"A disquieting 'new' occupational disease capable of killing not only the exposed workman but also perhaps his womenfolk and even people living near his place of work is the subject of intensive behind‑the‑scenes activity by British scientists,

experts on industrial health and representatives of at least two Government Ministries."

The disease referred to is mesothelioma. Mr Reid concluded his letter by stating that he had promised to let Mr Walker have information on the recommended treatment against asbestosis and asked Mr Pysden for whatever information was available on this.

Exhibit P149 is a letter from Mr Pysden, personnel manager, to Mr Reid of 16 February 1966 and appears to be in response to Mr Reid's inter‑house letter that is Exhibit P148. In his letter Mr Pysden says:
"The mining and processing of nearly all minerals creates a dust hazard and a health problem. The article is not new – it is merely one of many reports on world studies which have been conducted since 1935 when the association between exposure to dust and carcinoma of the lung, mesothelioma of the pleura, tumour of the bladder and uterus and other fatal complaints, was first recognised. The nucleus is dust particles - fibre. Four types of asbestos – chrysotile, amosite, crocidolite and anthophylite – have similar effects on the body and it has not been possible to establish that one is more pathogenic than the others. There is no cure for Asbestosis."
Mr Pysden went on to say that the only preventive action is to eliminate the presence of dust. Mr Pysden warned that moving employees around between "dusty" and "clean" jobs was not necessarily effective because some people seem to be affected more readily than others although the reason had not yet been discovered.
Exhibit P152 is a document dated 29 March 1966 signed by Dr S F McCullagh, and entitled "Notes and Comment, Biological Effects of Asbestosis, Annals of the New York Academy of Sciences, Volume 132, pages 1 – 766, 31 December 65". Dr McCullagh's letter head describes his practice as industrial and preventive medicine. He later became James Hardie's chief medical officer and was titled the company's Federal Medical Officer. Dr McCullagh writes that in the US the accepted safe upper limit is 5 million particles per cubic foot while the British adopt a rather lower level expressed as 4 fibres per millilitre. However, in both the US and the UK it is said that there is no safe upper limit, that all fibre and any fibre is dangerous. In the UK there is reason to believe that in some plants dust is now so well controlled that it no longer is any danger – though it would be years before it can be established that this is so. Dr McCullagh noted that it seems that once a

sufficient exposure has occurred it is simply a matter of time before asbestosis develops, one is concerned with time from first exposure rather than with the duration of the exposure, but he could find no certain information as to what is a sufficient exposure. Dr McCullagh said it was fair to say that asbestos fibre is generally held to be associated with and probably the cause of two forms of cancer, bronchogenic carcinoma and mesothelioma. Dr McCullagh noted that it was suggested that even a brief and slight exposure may result in mesothelioma. Dr McCullagh noted that it was suggested that the increasing use of asbestos products, with their slow disintegration and the release of "indestructible" asbestos fibres, was leading to a dangerous pollution of the urban atmosphere throughout the world.

Exhibit P555 is a James Hardie inter‑house letter of 21 April 1966 from F A Page, to Mr N E Gilbert. Mr Page was chief engineer and a director of James Hardie. Mr Gilbert was the manager of Camellia, James Hardie's largest plant. Mr Page says: "It is not possible nor is it, I feel desirable, to try and define a safe concentration. All dust is harmful so that we must regard the best we can do as still inadequate". It can be seen from the letter that Mr Page is concerned with the conditions at the defendant's factory at Camellia.
Exhibit P162 is a memorandum of 22 June 1966 from Mr Pysden, to H C Sadgrove of the defendant's Penrose factory in New Zealand. Mr Pysden stated the company's belief that the only way to control dust is to engineer it out of existence. In the meantime, Mr Pysden said, all potential sources of dust should be spotted and suitable action taken to get the dust out of the atmosphere. Mr Pysden referred to the classical case of an English woman whose only contact with dust was brushing her husband's clothes when he came home from work.
Exhibit P2619 is a letter of 14 September 1966 from E M Rathus, director of industrial medicine, to the works manager of James Hardie. The author says: "It is quite invidious to say more than that the asbestos industry has posed a great problem in all countries for many years and that only absolute enclosure of dusty processes would be really effective". This letter is about employees of James Hardie working in dusty situations who had abnormal appearances on X-rays.
Exhibit P2622 is a letter of 31 May 1967 from E M Rathus to the James Hardie factory manager. The author states: "My reading of modern literature suggests that the obstacles can be overcome, and I hope your firm is successful in its design problems … it is indeed a great pity

that men will not heed the advice to use the masks provided". Again, the author is referring to employees at the defendant's factory.

Exhibit P74 is an extract from notes taken from the factory managers' conference 19 – 23 June 1967 p 35. The notes are concerned with dust control in factories and medical supervision of employees. It is noted that recent research has established a relationship between contact with asbestos and mesothelioma and lung cancer. It is noted: "Incidence of mesothelioma is very low but newspaper publicity can build it up to such an extent that it could cause the imposition of very severe regulations by the various State Health Departments and resistance to use of products containing asbestos".
Exhibit P1255 is a letter of 18 December 1967 from the branch works manager of the Brisbane office of Wunderlich Ltd to the finance director. The author states that there is apparently growing evidence to suggest that the hazard presented by asbestos is not confined to employees only, but may possibly be present for employees' families, local residents and even for the user of the product. Three articles in the British Medical Journal are cited as authority for that proposition.
Exhibit P598 is a copy of a publication entitled "Hygiene Standards for Chrysotile Asbestos Dust" from the Committee on Hygiene Standards of the British Occupational Hygiene Society published in 1968. It was a publication received by the defendant. The publication commences with the following summary and recommendations:
"1.As long as there is any airborne chrysotile dust in the work environment there may be some small risk to health. Nevertheless it should be realised that exposure up to certain limits can be tolerated for a lifetime without incurring undue risks.
2.The committee believes that a proper and reasonable objective would be to reduce the risk of contracting asbestosis to 1 per cent of those who have a lifetime's exposure to the dust. By 'asbestosis' this committee means the earliest demonstrable effects on the lung due to asbestos."
The committee stated that as long as there is an appreciable amount of dust in the air, it recognised that there may be some risk to health. On p 11, under the heading "Cancer" it is stated that it is generally recognised that there is significant risk of lung cancer associated with asbestosis and

a risk of mesothelioma exists in connection with the inhalation of crocidolite dust in particular. The committee states:
"There can be little doubt that these risks will be least in the lowest concentration … but the quantitative relationship between asbestos and cancer risk is not known, nor is it known exactly why these two are related, nor even whether all kinds of asbestos present a risk. Consequently it is not possible, at this time to specify an air concentration which is known will be free of risk in this respect."

It is common ground, and established by the expert medical opinion, that inhalation of asbestos fibres caused, or materially contributed to, the plaintiff's mesothelioma. Three possible sources of asbestos inhalation had been identified. The plaintiff's handyman activities, some specific exposure or exposures that the plaintiff did not recognise or has forgotten and the background exposure in the sense of ambient environmental exposure as I have earlier described it.

I have already referred to the evidence of the principal expert witnesses. Professor Musk opined that the cause of the plaintiff's mesothelioma was asbestos exposure as a result of his handyman activities in 1983, 1985 and 1990. Professor Robinson considered that the plaintiff's mesothelioma is likely to be due to his asbestos exposure in the course of those handyman activities. Professor Henderson said that the plaintiff's handyman exposures were significant for induction of his mesothelioma in that they represented exposures in excess of any background exposure derived from the environment at large. Professor Henderson concluded that the plaintiff's exposure was significant for causation of his mesothelioma. Dr Alvares said that the plaintiff's handyman exposures are clearly powerful etiological factors in causing the plaintiff's mesothelioma. Dr Leigh stated his opinion that the plaintiff's total cumulative asbestos exposure from his handyman activities was significantly greater than background exposure from the environment at large and the plaintiff's handyman exposure made a material contribution to causation of his mesothelioma.
Contrary views were expressed by Professor Berry and Professor Breslin. However, for the reasons I have given, I attach no weight to their opinions that the plaintiff's handyman exposures did not contribute to the plaintiff contracting mesothelioma, or at least that the background risk of suffering mesothelioma was greater or much greater than the risk of the plaintiff contracting mesothelioma from his handyman exposures.
I prefer the evidence of the medical experts – Professor Musk, Professor Robinson, Professor Henderson, Dr Alvares and Dr Leigh – to that of the industrial hygienists – Mr Rodgers and Dr Francis – on the issue of the contribution of the plaintiff's handyman asbestos exposures to the plaintiff contracting mesothelioma and the risk of the plaintiff contracting mesothelioma from his handyman exposures compared with the background risk.
Having regard to my findings based on the evidence of the plaintiff and the opinions of the medical experts and industrial hygienists I draw the inference that the plaintiff's handyman exposures caused or materially contributed to him contracting mesothelioma.

Causation in fact – conclusion

I find that:
1.The defendant breached the duty of care it owed to the plaintiff.

2.That breach of duty increased the risk of the plaintiff contracting mesothelioma.
3.That risk eventuated in that the plaintiff did contract mesothelioma.
4.There is no evidence, or evidence that I accept, that the defendant's breach of duty had no effect or that the plaintiff would have contracted mesothelioma even if the defendant had performed its duty.

Having regard to the legal principles of causation I have discussed earlier I conclude that having made those findings it is to be taken that the defendant's breach of duty caused or materially contributed to the plaintiff contracting mesothelioma.
Alternatively, if the proper approach to causation as a matter of law or in the factual circumstances of this case is to determine whether it should be concluded as a matter of inference and on the balance of probabilities that the defendant's breach of duty was a cause, or materially contributed to, the plaintiff contracting mesothelioma, then I find that the inference should be drawn in this case.
For those reasons, I conclude that the defendant's breach of duty of care caused, or materially contributed to, the plaintiff contracting mesothelioma.

Legal causation

The defendant submits that if there was a duty to advertise, a breach was not causal, that is the negligence of the defendant was not a cause of the plaintiff's injuries.
In Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469 at [82] Gummow and Hayne JJ said that the critical question in that case was whether the negligence of the defendant was a cause of the plaintiff's injuries. Their Honours said that the duty that must be found to have been broken is a duty to take reasonable care to avoid what did happen, not to avoid "damage" in some abstract and unformed sense.
The defendant says that the plaintiff would not have seen or responded to advertisements.
In his witness statement the plaintiff said that there were no warning labels on any of the products he handled and he was never made aware

that the products were dangerous. He was never advised about any risk or danger in doing any of the work that he did on the asbestos cement products. The plaintiff said that if he had known that exposure to asbestos could cause cancer he would have either worn effective respiratory protective equipment or not done the work at all and got someone in to do all of the work.

The plaintiff described himself as someone who is very careful to follow instructions on equipment. He said that if he had been provided with instructions on how to properly handle asbestos he would have followed the instructions.
The plaintiff said that he is not an avid news watcher but he watches the news if it is on. The only newspaper he gets is the Sunday paper. Most of the time he listens to the radio at work but mainly Classic FM. In cross‑examination the plaintiff said that he used to get a paper on Wednesday but that was some years ago.
In cross‑examination the plaintiff was shown a number of articles relating to asbestos risks published in newspapers from 1983. The plaintiff did not recall having seen any of them. The defendant submits that it should be inferred that the plaintiff would not have seen public announcements or advertisements placed in the newspaper by the defendant concerning asbestos risks even if they had been published in newspapers circulating in the Perth area in 1983. I do not accept that argument. There is a significant difference between an announcement or advertisement by the manufacturer of a product that there is a risk of cancer from using the product and that the risk may be avoided or minimised by following certain preventive steps on the one hand and on the other hand information or opinions concerning asbestos risks emanating from some other person.
It may be inferred, and I do infer, that if in or before 1983 the defendant had made public announcements or placed advertisements in a Perth daily or weekly newspaper monthly or more frequently saying that a handyman or casual user of asbestos cement building products ran a risk of contracting mesothelioma and that the risk could be minimised by the taking of certain steps then that information is likely to have come to the attention of a person such as the plaintiff who watched the news, listened to the radio and regularly read a newspaper, even if only weekly. It may be inferred, and I do infer, that it is likely that the information would have come to the attention of the plaintiff either directly or through

republication or repetition by other media sources or family, friends, work colleagues or other acquaintances.

All that the defendant did to bring the risk of using the asbestos cement products and preventive steps to minimise the risk to the attention of the public was to place inadequate labels on its products, distribute some literature in hardware stores and conduct a "road show" for store retailers. The steps taken by the defendant were wholly inadequate to bring the risks home to the class of persons to which the plaintiff belonged. The defendant's failure to take those steps was a failure to take reasonable care to avoid what did happen to the plaintiff, that is the exposure to asbestos that the plaintiff experienced in 1983, 1985 and 1990 when working on the defendant's asbestos cement building products as described in his evidence and his resulting contracting of mesothelioma.
I find that the defendant's breach of duty was relevantly causal to what did happen to the plaintiff, that is the exposure to asbestos in the course of his handyman activities, which I have found in fact caused or contributed to him suffering mesothelioma.

Liability – conclusion

The plaintiff is entitled to recover from the defendant damages for the defendant's breach of duty that caused, or materially contributed to, the plaintiff contracting mesothelioma.

Damages

The plaintiff claims damages under a number of headings. The plaintiff and the defendant agree on the quantum of some heads of damages but not on others. The heads of damages which have not been agreed are:
1.Loss of expectation of life;
2.Loss of future earning capacity;
3.Future loss of superannuation;
4.Future care/services; and
5.Future out of pocket expenses.

Agreed heads of damages

The parties have agreed the following heads of damages in the following amounts:

Head of Damage	Amount
Past loss of earnings	$13,098
Interest on past loss of earnings	$556.66
Past loss of superannuation	$441.76
Past care/services	$17,971.97
Interest on past care	$763.76
Past medical and out of pocket expenses	$40,068.11
Interest on past out of pocket expenses (on non‑Medicare and non‑Medibank items only)	$59.60

General damages

Non‑pecuniary damages include damages for pain and suffering, loss of amenities of life, loss of enjoyment of life and loss or curtailment of expectation of life. The parties dealt with non‑pecuniary damages under the heads of loss of expectation of life and general damages including pain and suffering, loss of amenities of life and loss of enjoyment of life. I will do the same.
In "Assessment of Damages for Personal Injury and Death", 4th ed Harold Luntz says at [7.1.5] that justice requires treating like cases alike and that, though it is sometimes denied that any two cases of personal injury are really alike, consistency of treatment necessarily involves a notional tariff as the starting point for the ascertainment of the damages for non‑pecuniary loss in any particular case. Section 10A(1) of the Civil Liability Act 2002 (WA) provides that in determining damages for non‑pecuniary loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings and that for that purpose the parties to the proceedings or their counsel may bring the court's attention to awards of damages for non‑pecuniary loss in those earlier decisions.
Senior counsel for the defendant submitted in his written outline of closing submissions that decided cases establish a range of damages between $110,000 and $180,000. Counsel for the plaintiff in his closing written submissions submitted that that is not correct. Counsel submitted that there have been a number of awards delivered in mesothelioma cases in recent years for general damages in excess of $180,000. They include:
•Hart v Amaca Pty Ltd [2004] NSWDDT 10 – an award of $200,000;
•Lynch v Amaca Pty Ltd [2004] NSWDDT 1 – award of $200,000;
•Clyne v State Rail Authority of New South Wales [2005] NSWDDT 4 – award of $190,000;
•Smith v Sydney Water Corporation Ltd [2000] NSWDDT 13 – award of $200,000;
•Gaunt v Amaca Pty Ltd, unreported; Ddt of NSW (Curtis J); Library No 151; 28 August 2003 – award of $220,000.
Counsel for the plaintiff referred the Court to the following recent awards in this Court to a plaintiff with mesothelioma:
•Misiani (as Executor of the Will of Misiani (dec)) v Welshpool Engineering Pty Ltd (in liq) [2003] WASC 263 – award of $150,000 (in a claim assessed after the death of the sufferer;
•McGilvray v Amaca Pty Ltd [2001] WASC 345 – award of $160,000;
•Easther v Amaca Pty Ltd [2001] WASC 328 – award of $130,000.
I must have regard to the fall in the value of money even in relatively low inflationary years but as Luntz points out at [7.1.5] the High Court has warned of the need to be alert to the danger of carrying over the familiar complaint that prices and wages are too high into the immediate response to any amount of damages: "The compensatory nature of an award of damages requires that it should be wholly unaffected by any instinctive time lag in one's adjustment to new levels of prices and wages".
The plaintiff is aged 63. The plaintiff was shocked to be informed by Professor Robinson on 17 November 2005 that he had a life expectancy of six to 12 months. The plaintiff has undergone two surgical procedures.

The procedures were very painful. Since the pneumonectomy the plaintiff has undergone three cycles of chemotherapy that have made him feel sick and caused some constipation, diarrhoea and an upset stomach. The plaintiff has an awful amount of trouble breathing and gets pain in his chest. At the time of giving evidence the plaintiff said that he spent most of his day at home, which is extremely frustrating but if he goes out he can only walk short distances and must have breaks which he finds frustrating and he gets nervous and anxious when in public places.

The plaintiff submits, and I accept, that the pain and suffering of the plaintiff is immense. I also have regard to the evidence of Professor Robinson as to the horrific nature of this disease and the pain and suffering associated with it.
It is relevant to consider the plaintiff's life expectancy and hence the duration of his suffering.
Professor Musk examined the plaintiff on 20 March 2006. After examining the plaintiff Professor Musk provided an opinion that the plaintiff had an expectation of survival of three to four years.
Mr John Alvarez is the plaintiff's treating cardiothoracic surgeon who conducted surgery on the plaintiff. Mr Alvarez provided a report on 14 February 2006 in which he said:
"The patients we have selected as suitable for tri modality therapy (plueropneumonectomy, combination chemotherapy and radiotherapy) we expect/hope to confer a better diagnosis. Data from North America (Dana‑Faber Cancer Institute, Boston, US) has yielded 5‑year survival in these select group of 48%."
Mr Alvarez said that it remains to be seen whether this result can be replicated in Australia. Counsel for the plaintiff submitted that in giving evidence the plaintiff indicated that he had only just given up driving, he rises himself and gets in and out of bed himself, dresses himself (except for doing his shoes up) and at the time of giving evidence was walking unaided. Having regard to all those matters I find that the plaintiff has an expectation for survival of approximately three and a half years.
The plaintiff had had some health problems associated with his heart and some high blood pressure. However, he said that before the onset of the mesothelioma symptoms he was healthy. I accept that prior to the onset of the mesothelioma symptoms the plaintiff was in generally good

health in that he was not incapacitated or inconvenienced by any heart or blood pressure problems.

The plaintiff said in his statement that he is extremely sad that he and his wife will not be able to retire together because they had had a long and happy marriage and looked forward to relaxing and spending time together.
I assess general damages in the sum of $180,000.

Loss of expectation of life

Counsel for the plaintiff says that the plaintiff's loss of expectation of life is a loss of 21.78 years of life having regard to the Life Tables, Life Expectancies Australia, 2005.
A conventional sum is awarded for this loss: Skelton v Collins (1966) 115 CLR 94; Sharman v Evans (1977) 138 CLR 563. The defendant says that the conventional sum is $15,000. The plaintiff says that an award of $20,000 should be made.
At [3.4.4] Luntz says that the Tables of Quantum of Damages in Australian current law in the 1990s reveal that, where a separate amount was specified for this head, awards ranged from $500 to $8,000, though in one reported case in New South Wales counsel's suggestion that the range was $5,000 to $20,000 was not challenged.
In McGilvray v Amaca (supra) Pullin J noted that the plaintiff could have expected to live for another 28.7 years and that the award of damages under this head is a conventional sum. His Honour allowed $15,000. In Easther v Amaca (supra) Scott J allowed $15,000 in circumstances where the plaintiff was almost 67 years of age. In Misiani (supra) Barker J also allowed $15,000 under this head of damage.
I award $15,000 for loss of expectation of life.

Loss of future earning capacity

Before the onset of his mesothelioma symptoms the plaintiff was employed by the Perth Zoo as a gardener. If he remained in that employment he would presently be earning $555 net per week.
353 The plaintiff gave evidence that his intention was to continue to work for as long as he could at the Perth Zoo and had no plans on retiring before 70 years. He was not cross‑examined on those matters. His

employer provided a letter that the Perth Zoo does not have a mandatory retirement age and places no age restriction on employment and that if the plaintiff was otherwise well, there is nothing that will prevent him from continuing his employment at Perth Zoo until aged 70 or beyond. But for his now expected premature death from mesothelioma the plaintiff would have obtained aged 70 in six years five months' time from the date of trial. I have found that the plaintiff has a life expectancy of approximately three and a half years at the time of trial.

For a further three and a half years from the date of trial at $555 net per week using 6 per cent multiplier (of 167) for three and a half years the loss is $92,685. From that some deduction must be made for the balance of adverse contingencies over favourable contingencies. The plaintiff suffered a myocardialinfarct about three years ago. At the same time he was found to suffer high blood pressure and elevated cholesterol. On the other hand, the plaintiff was not incapacitated or inconvenienced at the time of trial and said that he was in good health. Three and a half years after trial the plaintiff would have been in his 68th year. I find that the plaintiff's loss of earning capacity for the three and a half years after trial should be discounted by 15 per cent. That makes a loss of $78,782.
But for his now expected premature death from mesothelioma the plaintiff would have obtained age 70 in six years five months time. However, the plaintiff now has a life expectancy of approximately three and a half years from the date of trial, that is to about November 2009. During those "lost years" expenses that would necessarily have been incurred by the plaintiff in producing the earnings, but that are now saved, must be deducted from the earnings that are used as the basis for the calculation of damages for lost earning capacity: see Luntz at [5.4.3]. I deduct an amount of $100 per week on that account. To work out the plaintiff's loss of earning capacity from November 2009 to October 2012 (ie the lost years) the 6 per cent multiplier for three and a half years, that is 167, is subtracted from the 6 per cent multiplier for six years five months, that is 282, that is a multiplier of 115. Applying a multiplier of 115 to a loss of $455 per week gives a loss of $52,235. I apply a slightly higher discount rate for adverse contingencies for working years between the age of 68 and 70 than for younger years. I apply a discount rate of 18 per cent. That gives a loss of $42,832.70 for the "lost years".
I assess future loss of earning capacity at $78,782.00 plus $42,832.70, that is $121,614.70.

Loss of superannuation

The plaintiff's employer would have contributed superannuation at 9 per cent of his gross pay of $36,463.00, that is $3,281.67 per annum or $63.11 per week. For a further six years five months from the date of trial at $63.11 per week using 6 per cent multiplier for six years five months [282] gives $17,797.02. Deducting 16 per cent for contingencies gives $14,949.50.

Future care and services

The plaintiff's wife gave evidence that she estimates the plaintiff needs approximately three hours of care per day for meal preparation and tasks that the plaintiff is unable to do himself. The plaintiff's daughter gave evidence that she estimates the amount of care the plaintiff requires presently is approximately three hours per day shared between her mother, her sister and herself. She referred to transporting the plaintiff to and from medical appointments and the plaintiff's severely restricted mobility.
Ms Raylene Nestler is a qualified registered nurse experienced in providing assessments for the future care of complex cases for clients with disabilities. Ms Nestler gave evidence of the costs of care that the plaintiff is likely to require in the end stages of his disease, a period of nine months.
I accept that in the two years and nine months from the date of trial the plaintiff will require assistance of the sort that his wife and daughter gave evidence. I allow damages for future assistance on the basis of two hours per day at a rate of $28.35 per hour, the commercial rate advanced by the plaintiff. The allowance for the next two years and nine months should be calculated as $28.35 per hour multiplied by two hours per day multiplied by seven days per week, that is $396.90 per week. The multiplier for two years and nine months is 133. Accordingly, the allowance for the next two years and nine months is $396.90 multiplied by 133, that is $52,787.70. I deduct 10 per cent for adverse contingencies and allow $47,508.93 for that period.
Ms Nestler has calculated the likely costs of the plaintiff's final nine months care to be $26,822.90 for six months, $49,950.40 for the next three months and $5963.80 for the last week. I am not satisfied that all of the allowances claimed and calculated are appropriate. It is difficult to calculate an appropriate allowance having regard to every item referred to by Ms Nestler. That is because the duration of the end stages of the plaintiff's care cannot be predicted with any accuracy and the particular

care that he will need is not certain. In the course of cross‑examination Ms Nestler properly conceded that the precise care and services that the plaintiff will require cannot be predicted with certainty. As Ms Nestler said things can change quite quickly with this type of disease with the plaintiff's breathlessness and ability to help himself and the plaintiff may or may not be able to do certain things for himself in the final nine months of his life. I allow an amount of $50,000 in respect of the final or end stage of the plaintiff's care. Thus, I allow an amount of $97,508.93 for future care and services.

Future out of pocket expenses

The plaintiff claims $47,984.62 for future out of pocket expenses. That is based upon an estimate of future care by Professor Robinson in the amount of $35,143.30. Additionally, the plaintiff claims pharmaceutical costs at $45.00 per week and equipment needs of $7,190.50.
The defendant submits that Professor Robinson allowed $3,456.00 for domiciliary nursing which overlaps with the care/services claim. The defendant further says that Professor Robinson has allowed more than $10,000.00 for medication, yet the plaintiff has made claim for another $9,165.15 for pharmaceutical costs. Thirdly, the defendant says that Professor Robinson also allowed for hospital admissions but this was based upon some speculation due to complications and should be separately discounted. The defendant says that the claim should be reduced to an amount in the order of $20,000.00.
I accept that there is some overlap between the amounts allowed by Professor Robinson on the one hand and the claim for care/services and pharmaceutical costs on the other hand. I also accept that there should be some discount for the allowances made by Professor Robinson for hospital admissions. I do not think that these matters are capable of precise arithmetic calculation. I allow an amount for $35,000.00 for future out of pocket expenses.

Summary of damages

I allow damages as follows:

General damages

$180,000.00

Loss of expectation of life

$15,000.00

Past loss of earnings

$13,098.00

Interest on past loss of earnings

$556.66

Loss of future earning capacity

$121,614.70

Past loss of superannuation

$441.76

Future loss of superannuation

$14,949.50

Past care/services

$17,971.97

Interest on past care

$763.76

Past medical and out of pocket expenses

$40,068.11

Interest on past out of pocket expenses (on non‑Medicare and non‑Medibank items only)

$59.60

Future care/services

$97,508.93

Future out of pocket expenses

$35,000.00

Total

$537,032.99

The plaintiff is entitled to judgment in the sum of $537,032.99.

General damages	$180,000.00
Loss of expectation of life	$15,000.00
Past loss of earnings	$13,098.00

Interest on past loss of earnings	$556.66
Loss of future earning capacity	$121,614.70
Past loss of superannuation	$441.76
Future loss of superannuation	$14,949.50
Past care/services	$17,971.97
Interest on past care	$763.76
Past medical and out of pocket expenses	$40,068.11
Interest on past out of pocket expenses (on non‑Medicare and non‑Medibank items only)	$59.60
Future care/services	$97,508.93
Future out of pocket expenses	$35,000.00
Total	$537,032.99