Jsekarb Pty Ltd v Plane

[1999] HCATrans 319

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S13 of 1999

B e t w e e n -

JSEKARB PTY LIMITED

Applicant

and

DESMOND KENNETH PLANE as Executor of the Estate of the late KENNETH MORTIMER PLANE

First Respondent

E M BALDWIN & SONS PTY LIMITED

Second Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1999, AT 11.49 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:  May it please your Honours, I appear with my learned friend, MR D.E. GRAHAM, for the applicant.  (instructed by Allen Allen & Hemsley)

MR J.T. RUSH, QC:   May it please the Court, I appear with MR R. SORBY and MR J.S. GORDON, on behalf of the executor of the estate, Mr Plane.  (instructed by Turner Freeman)

MR P.M. HALL, QC:   May it please the Court, I appear with my learned friend, MR L.V. GYLES, for the second respondent.  (instructed by Hunt & Hunt)

GAUDRON J:   Yes, Mr Walker.

MR WALKER:   Your Honours, the question of the applicant’s liability at trial and in the Court of Appeal depended upon the two-stage process of factual investigation, which accordingly required factual finding, which is identified in the written material that your Honours have seen.  They have been labelled, for convenience, the question of general causation and specific causation.  There is, of course, no magic in the titles.  The first refers to ‑ ‑ ‑

GAUDRON J:   They are not legal concepts either, are they?

MR WALKER:   No, they are mere labels for the convenience of argument.  The first ‑ ‑ ‑

HAYNE J:   That is of the very first importance, to keep well in mind that the inquiry is whether the negligence of the party for whom you appear was a cause of the injury sustained.

MR WALKER:   Yes.  And I should add in a way which is either apparently, or both apparently and really against myself, that we accept that the beginning and end of one view of the exercise is that it is a fact finding on the particular evidence in the case on the balance of probabilities only.

HAYNE J:   And it was found, was it not, as a fact that the mesothelioma was caused by the cumulative effect of exposure to which the plaintiff was exposed?

MR WALKER:   That is the ultimate conclusion of fact.  The qualification I introduce in my answer to your Honour is to recognise that our argument, as your Honours have seen, depends upon other findings of fact which are transitional to that conclusion in a leading judgment of the Court of Appeal which we submit do not support that conclusion.  But, with respect, your Honour is of course right, that it is a finding of fact, and of fact only, to express the conclusion that the tremolite-contaminated chrysotile for which my client is liable, negligence itself in the sense of carelessness not being in question, it is a finding of fact which attributed that as a cause of the disease.

Your Honours, what was in question, of course, was subject, notwithstanding the voluminous material referred to in the Court of Appeal, that is referred to as having been voluminous, was the subject of a degree of common ground or lack of contest.  Those facts which inform the logical difficulty with the final conclusion of fact to which your Honour Justice Hayne has referred include the following important matters.  First, that there were for the purposes of the factual argument to be identified two periods of two quite distinct forms of exposure.  In what is called the earlier period, there was exposure to the amphibole type of fibre, in particular crocidolite which, on all hands, was considered to be, beyond any sensible dispute, much more potent than the other forms of fibre to be considered in relation to my client’s liability.

It is a finding which is not challengeable by anybody at the Bar table that the crocidolite exposure was itself sufficient to have caused the disease and did so.

GAUDRON J:   It was not found that it was the sole cause.

MR WALKER:   No.  For the reasons already exposed by Justice Hayne’s question to me, it follows that it was not found to be the sole cause.

GAUDRON J:   That is right.  And if it was not found to be the sole cause, and there was a finding that it was the combined effect, then unless you can establish “of no possible causative impact”, you lose.

MR WALKER:   I lose, yes.  Unless I can insert an argument into the logic your Honour has just narrated, then we must lose, and that certainly raises no question for special leave.

GAUDRON J:   Even if you can insert an argument, it seems to me it does not raise any question of special leave.

MR WALKER:   My attempt to persuade your Honour to the contrary starts with the fact that the case involves more than just attendance to particular evidence.  The case involves the application, in practice, to the familiar phrase “cause or materially contribute” or to the familiar concept, which does not require any further attention from this Court, that one does not need to isolate a sole cause in order for a defendant to be liable; what matters is whether a defendant has been responsible for a cause.

Now, those phrases, which, again, there being no special leave necessary to explicate them in general, do from time to time, in our submission, particularly in questions where scientific causation is a matter for scientific evidence, there being ‑ ‑ ‑

GAUDRON J:   But we are never concerned in these cases with scientific causation.

MR WALKER:   I am sorry.

GAUDRON J:   We are not concerned in this case with scientific causation.

MR WALKER:   I accept entirely.  By “scientific causation” I was perhaps wrapping up a more elaborate notion, your Honour.  By that I mean causation depending upon, on both sides, an understanding of scientific evidence.  Certainly not causation according to the dictates of science, no, but causation according to the dictates of law as a matter of fact, depending, and depending solely, in this case, as it happens, on matters of science explicated by experts.

HAYNE J:   There was a very great deal of evidence called, apparently, at this trial.

MR WALKER:   Yes, your Honour.

HAYNE J:   I do not know that we need presently embark on a discussion about the relevance of some of that evidence.  Is not the critical fact that Professor Henderson’s evidence was accepted?

MR WALKER:   The critical fact against me, that is a point which would both deprive this of any special leave point, plus of course it was the reason why we lost in the Court of Appeal.  To go back slightly, however, to answer your Honour’s question more fully, your Honours will recall that at page 91 of the application book there is one of the relatively brief disposals, if I can call it that, of the trial reasons.  The fact was that the Court of Appeal was persuaded there had been an insufficient attendance to the evidence in the trial court.  That meant that the question your Honour has asked me about the, as you call it, acceptance of Professor Henderson’s evidence was a matter which really proceeded in the Court of Appeal.  It was not a matter which has, perhaps unusually in such cases, a bolster of what I will call a credibility preference properly explained.

HAYNE J:   What is meant at page 91 by the expression:

In particular, the Tribunal did not accord due weight to the evidence of the epidemiological experts –

How does a Court of Appeal inject its view of the weight to be accorded to oral evidence, even oral expert evidence, given at trial?  I do not understand what his Honour is there meaning.

GAUDRON J:   And I am not too sure that once the evidence of Professor Henderson was accepted it was necessary to have regard to the epidemiological evidence.

MR WALKER:   I can combine an answer to both those questions, I think. 

HAYNE J:   Or you will try to.

GAUDRON J:   Answer Justice Hayne first.

MR WALKER:   Either that or I will fail to answer both questions with a miscued answer.  It is this:  first, Professor Henderson’s evidence is not correctly characterised as non-epidemiological.  As you would expect in a case where no pathologist or therapist or diagnostician could claim to speak either specifically, that is for the patient, or generally, that is for science, on the basis of what can be seen, felt, smelt, touched, everything came down to the observations of science, which were on all hands recognised to be relevantly epidemiological.  That is the observation over the years in properly constructed studies of the patterns of prevalence according to different exposures.  So Professor Henderson, in answer to your Honour Justice Gaudron’s question, was not an expert who could be seen, as it were, standing parallel and apart from, and capable of being preferred over and above so-called epidemiological evidence.  It depended upon it.

HAYNE J:   Why not?  Why was that not a choice entirely for the trial judge.  I am persuaded by Professor X, I am unpersuaded by Professor Y or Z.

MR WALKER:   No, what I am saying, your Honour, trial judges can within limits do that.  The first answer is this trial judge did it in a way which the Court of Appeal held to be incorrect.  I suppose the familiar phrase would be that he did not take proper advantage of the advantage he had of seeing the witnesses.  In short, it was not a matter, so far as the Court of Appeal was concerned, of being able to say, I have seen a parade of eminent specialists or experts and I would prefer the way in which Professor X gave evidence to the way Professor Y gave evidence.  I therefore accept Professor X’s theory and not Professor Y’s theory.  The trial judge did not really do that in any event, as is made clear at page 91 of the application book.  The Court of Appeal did not regard it as possible to justify the conclusions below on that basis.

HAYNE J:   I read the criticism there as being a criticism of reasons, a criticism of reasons given extempore.

MR WALKER:   Yes, your Honour, exactly.  As your Honour indicates, perhaps one should start in the Court of Appeal with a liberal sympathy to extempore reasons, particularly with copious scientific evidence.

HAYNE J:   Given in a case of great urgency.

MR WALKER:   Given in a case of both poignancy and urgency, we accept all of that, your Honour.  However, by the time it came to the Court of Appeal it was clear, in our submission, that a preference for Professor Henderson was not a way of avoiding the necessity to grapple with epidemiological evidence because his evidence was in that field.  That is, based on that field, he was expressing opinions about the capacity in general of the different fibres to have caused the disease actually suffered by Mr Payne.

GAUDRON J:   There was evidence that given sufficient exposure, the tremolite-contaminated material for which your client was responsible could cause mesothelioma.

MR WALKER:   Yes, I think it is the evidence that was tendered on behalf of my client that really made that very clear.  Page ‑ ‑ ‑

GAUDRON J:   Now, it is not a very big step to say exposure to that, in combination with the “much more potent”, was the cause of the disease in this case, is it?

MR WALKER:   Yes, it was, your Honour.

GAUDRON J:   Why?

MR WALKER:   Because of the way in which the facts are found ‑ ‑ ‑

GAUDRON J:   You have to say, in the circumstances of this case, that the other one must have been the sole cause, do you not?

MR WALKER:   If I have to do that, then ‑ ‑ ‑

GAUDRON J:   As a matter of logic.

MR WALKER:   If I have to take that as the first step, then it will be unpersuasive, but there is a superior first step, your Honour, namely that it was found – indeed, it is again common ground or incontrovertible at the Bar table – page 134 is a convenient reference in the application book, that the first period, crocidolite, which is of course neither tremolite nor chrysotile, was sufficient.  Now, that is a somewhat different concept, though it clearly informs a concept of sole.

GAUDRON J:   Sufficient, but there was not a finding that it was the sole cause.

MR WALKER:   The inquiry before the Court of Appeal focused entirely on the conclusion having been sufficient, having found that the first period fibre, for which my client was not liable, was a sufficient cause and probably was a cause or the cause or materially contributed ‑ ‑ ‑

GAUDRON J:   No, you see you are conflating notions of causation.  The trial judge’s finding was that it was the total exposure that caused the disease.

MR WALKER:   Yes, that was the conclusion, although the building blocks of that conclusion started with the fact that the earlier period was sufficient to have caused, and thus probably caused.  The whole question, that really was – that was common ground.  The whole question was whether we were also liable because we materially contributed. 

GAUDRON J:   But there is no finding that it was probably the cause.  If there was a finding that, on the balance of probabilities, it was the cause, that is one thing.

MR WALKER:   Could I take your Honour to the foot of 133.

the tremolite-contaminated chrysotile inhaled by Mr Plane in the later period was probably insufficient by itself to cause his mesothelioma, which –

that is the mesothelioma –

as was observed above, it was conceded was probably caused by asbestos fibre inhaled during his employment –

Now, that is early and late periods during his employment.

HAYNE J:   The lot.

MR WALKER:   Yes, that is the lot.

GAUDRON J:   That is the lot.

MR WALKER:   That is the whole lot.  That is read in the context of the sentence on page 133, just below line 15:

Nonetheless, the Tribunal’s conclusions that his exposure to amphibole asbestos fibre on those occasions –

and those are the occasions of locomotive gaskets and insulating steam pipes in the later period, that is amphibole –

was substantial and probably materially contributed to his mesothelioma were warranted.

Those are not the Jsekarb brake lining exposures.  So that we have a finding, both trial and at appeal, that there was sufficient to have caused from amphibole exposure other than the Jsekarb exposure.

HAYNE J:   Sufficiency, where do you find sufficiency?

MR WALKER:   That must be a premise of “probably materially contributed”.  Unless it is sufficient it cannot have materially contributed.

GAUDRON J:   You are conflating legal causation – legal causation is satisfied by materially contributed.  That is the difficulty in this case.  There is a tendency to conflate legal notions with scientific notions.

MR WALKER:   Yes, your Honour, and I accept that temptation in this case is not always resisted.

GAUDRON J:   Including by, it seems to me, the people who conducted the case at first instance an on appeal.

MR WALKER:   Your Honour, what emerges from the evidence which is referred to, though not in very great detail, in the material that has been placed before your Honours, including the judgments in the Court of Appeal, what emerges is that there was no contest but that the tremolite‑contaminated chrysotile was not exposed to Mr Plane in quantities that came anywhere near those quantities referred to in the phrase between lines 15 and 20 on page 134, to which I think both your Honours have drawn my attention, that the minimum exposure requirements were not satisfied by any of the evidence in this case.

GAUDRON J:   To be the sole cause, to be the sole cause.  There is doubt about ‑ ‑ ‑

MR WALKER:   Yes, your Honour, hence the emphasis on “only” and “by itself” in the two lines just above.

GAUDRON J:   That is right, but once there is a finding that the cause was the total exposure ‑ ‑ ‑

MR WALKER:   That is the conclusion, your Honour.  It cannot be used as one of its steps towards itself.  The question was, it being conceded or found – it does not matter which – that the other fibres caused ‑ ‑ ‑

GAUDRON J:   Materially contributed to.

MR WALKER:    ‑ ‑ ‑caused or materially contributed to, which is enough for liability.

GAUDRON J:   Materially contributed to, to get a phrase that respects both the scientific and legal notions.

MR WALKER:   Once that is found, can it be said that something which, by itself and alone, was not sufficient – and that is also found in our favour – can it be said that that materially contributed.  The point, in our respectful submission, that no decision yet has analysed overtly is whether or not, by the combination of the negative criterion imposed by the “but for” test and by the need to give material contribution its proper and practical application, whether or not something can be said to have mattered, that is materially to have contributed, if first it does not pass the “but for” test and, second, the event for which the liability is claimed would have happened anyhow.

GAUDRON J:   That is, you see, precisely what has not been found: would have happened anyhow.

MR WALKER:   With great respect, your Honour, at 133, 134, it goes over the top of 135, we have a finding that the earlier period exposure probably materially contributed to – that is a liability event – the mesothelioma.

GAUDRON J:   Yes.  But that is not a finding that, absent exposure to the tremolite-contaminated chrysotile, he would have developed mesothelioma.

MR WALKER:   It is not tantamount to that.

GAUDRON J:   No.

MR WALKER:   But, in our submission, the evidence to which I have drawn attention necessarily meant that if one took away the brake linings altogether, there could have been only one answer to the question, was the earlier amphibole exposure sufficient to have caused?  It is answered by the findings to which I have drawn attention, that it did cause, and that it did materially contribute.  The two do not matter.  The distinction between the two do not matter.

HAYNE J:   Thus is the legal proposition for which you contend capable of expression in this form, that a party is not responsible where it has made a material contribution to damage which, standing alone would be not sufficient to cause the result, and there is another material contribution which, if it stood alone, would have been sufficient to cause the result.

MR WALKER:   No, your Honour, it is the insertion of “materially” in the first part of that proposition which distinguishes it for the proposition for which I do contend.

HAYNE J:   Because are you not hypothesising necessarily a set of circumstances radially and fundamentally different from the circumstances confronting the trial court, which was exposure to the whole, and you are saying that one should examine that by considering a very different factual base, namely exposure to part only?

MR WALKER:   I think I have to say yes to that on this basis.

HAYNE J:   It seems an infirm basis for a legal principle to say, we will not take the facts as they were, we will take hypothetical facts.

MR WALKER:   No, it is to test, your Honour, the application of “but for” and it is to test materiality.  In our submission, it is a usual judicial technique which courts every day apply to posit what would have happened “but for”.  It is how one applies the “but for” test.  It is only in that sense that there is hypothesising involved.  There is nothing infirm.  That is a robust approach to the testing of causal arguments.

Your Honours, I see the light.  I should have drawn to your attention, and I do now, that on the so-called apportionment issue, about which I have said nothing, a Bench of five sitting in the Court of Appeal in New South Wales on 13 September 1999 in Roberts v James Hardie has held – I paraphrase – that this case does not stand for, and if it does it is wrong in

standing for, the proposition which we raised on the special leave application.

GAUDRON J:   That rather ‑ ‑ ‑

MR WALKER:   That is why I draw it to your attention.

GAUDRON J:   Yes, thank you.  Yes, we do not need to hear from the respondents in this case.

This application raises no novel question of principle about causation in negligence.  It was the late Mr Plane’s case at trial and the Dust Diseases Tribunal accepted that the mesothelioma from which he suffered resulted from the cumulative effect of inhaling asbestos fibres, including from fibres of the present applicant, Jsekarb.

In this regard it was accepted that fibres of the kind contained in its products, given sufficient exposure, could cause mesothelioma.  It followed from those findings that Mr Plane’s exposure to asbestos fibres from the applicant’s products was a cause of injury.  Once that is understood, it is irrelevant that it was not and could not have been the sole cause. 

Much of the evidence adduced at trial by Jsekarb, which it now seeks to have reviewed by this Court, appears not to have been to the point.  That is because it seems to have been directed to demonstrating that inhalation of asbestos fibres from its products was probably not the sole cause.  It follows that no error of principle is to be discerned in the approach of the Court of Appeal to the question of causation.  Moreover, once it is concluded that it was accepted that the cumulative exposure caused Mr Plane’s injuries, the question of apportionment raises only a question as to the value judgment to be made in the light of all the relevant evidence.  That latter question does not raise a question of sufficient importance to attract the grant of special leave.  Accordingly, the application is refused.

Do you resist a costs order?

MR WALKER:   Only that it ought not to be double.  The respondents have a common interest.

MR RUSH:   Can I say something on costs, your Honour?

GAUDRON J:   Yes.

MR RUSH:   We seek indemnity costs in relation to this application, your Honour.  We gave notice on 6 October in connection with it.  Since the filing of the application book, the Court of Appeal has dealt with the matter of costs:  awarded the estate indemnity costs on the basis of a Calderbank letter provided before the appeal.  As your Honours would appreciate, it is a very small judgment.  This material was before the Court of Appeal on the costs application.  It is the only asset of the estate.  On that basis, your Honour, we seek indemnity costs.

HAYNE J:   On the basis, effectively, of the Calderbank letter and its consequences?

MR RUSH:   That is correct, your Honour.

GAUDRON J:   What do you say to that?

MR WALKER:   I have nothing to say to that, your Honour.  The only point I have made about costs is the double costs point, acknowledging as I do, that my friend Mr Rush’s application rather introduced a distinction but it is not one that should cost us, as it were, more money except by way of the indemnity in favour of the estate.

MR HALL:   The second respondent seeks costs.  There were two issues; the causation issue and the apportionment issue and we were - - -

GAUDRON J:   That is right.

HAYNE J:   A different contribution made them – - -

MR WALKER:   I have nothing further to say, your Honour.

GAUDRON J:   Yes.  There will be an order for costs with respect to both respondents.

MR RUSH:   If it please the Court.

GAUDRON J:   And indemnity costs for the first respondent.

AT 12.17 PM THE MATTER WAS CONCLUDED