Julia Farr Services Incorporated v Mark John Phillip Hayes (Administrator Ad Litem in the Interests of the Estate of the Late Ethel Barbara Hayes)

[2005] HCATrans 295

[2005] HCATrans 295

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S220 of 2003

B e t w e e n -

JULIA FARR SERVICES INCORPORATED

Applicant

and

MARK JOHN PHILLIP HAYES (ADMINISTRATOR AD LITEM IN THE INTERESTS OF THE ESTATE OF THE LATE ETHEL BARBARA HAYES)

Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 APRIL 2005, AT 9.48 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR D.T. MILLER, for the applicant.  (instructed by Moray & Agnew)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friends, MR M.J. JOSEPH, SC and MR R.A. O’KEEFE, for the respondent.  (instructed by Alex Stuart & Associates)

GUMMOW J:   Yes, Mr Walker.

MR WALKER:   Your Honours, in the Court of Appeal this was an appeal from a tribunal in relation to which there was no appeal by way of rehearing on questions of fact.  May I go then directly to the material relied upon by the trial judge and, in turn, narrated and relied upon in the Court of Appeal, upon the basis of which we say there is one but important point about the capacity of the factual material – itself beyond appellate challenge – the capacity of that factual material to satisfy what the law presently requires in relation to the foreseeability of risk, which then excites the necessity to consider a reasonable response to it. 

The importance of that challenge is, of course, the pressure which, in our respectful submission, is understandable from some decades of decisions in this area, the pressure on the well‑known epithets in the second of the famous paragraphs of Sir Anthony Mason’s judgment in Shirt:  remote, highly unlikely, but nonetheless foreseeable and, on the other hand, far‑fetched and fanciful, not foreseeable.  Can I then take your Honours to page 71 of the application book, because this would appear, with respect, to have been regarded in the Court of Appeal to have been the height of the case for the plaintiff upon the basis of which it was held that my client had been in breach of the duty of care. 

Counsel for the plaintiff was taking the distinguished Professor Henderson to material which was obviously intended to be state of art at the period ‘71, ‘72, ‘73 of the putative exposure of the plaintiff.  Your Honours will recall the exposure comes by dint of the fact that there had been routine maintenance from time to time requiring the removal of ceiling tiles without the vacuuming of dust on top of that, the dust, ex hypothesi, including some of the detritus from asbestos spray applied fireproofing.  At the foot of page 71, the 1968 British report on hygiene standards is referred to and halfway down, having referred to the mesothelioma risk as then understood, those experts – 1968 – said:

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 or 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 to be free of risk in this respect.

We interpolate that could not fairly be read as saying, “It is known that there is risk at every level, however low”.  Your Honours will be aware that there is a term of art, perhaps a spurious but handy term of art in this area, talking about so-called background risk.  That is the risk that, for example, is present in this room as I speak, that is unavoidable in an urban area nowadays, which really is best explained as being the risk presented from asbestos coming from presently unidentified sources.  It does not mean they could not, in a particular case, be identified at least as to an increment.  Page 72 of the application book, the Professor’s response to that 1968 statement:

that opinion is within the broad mainstream medical thinking at that time –

It is to be recalled, of course, the reasonableness here is a reasonableness for a non-medical defendant.  On the other hand, not co-incidentally, we were conducting a hospital.

we were all very disturbed about the capacity of apparently low dose –

now, that does not mean the lowest of low doses –

and very transient asbestos exposures –

that certainly would have included what occurred in this case –

and we did not know how many people would be at risk in the general community.

which really is giving a particular public health slant to exactly what the 1968 experts by consensus had obviously said, namely, “Not known whether there is a level free of risk”.

GUMMOW J:   What do you say about paragraphs 10 and 11 of Mr Jackson’s revised summary of argument, which was provided several days ago?

MR WALKER:   As to 10(a) I think I have just conceded that point, but it has to be said that ‑ ‑ ‑

GUMMOW J:   I do not think we have the same document.

MR WALKER:   I am sorry, your Honour, amended respondent’s summary of argument.  As to the first dot point, which was 10(a), I think I have already conceded that matter.  As to the second dot point, well, yes, I am dealing with the evidence for the full value against us that was relied upon in the trial court and in the Court of Appeal.  As to the third dot point, the 1965 paragraph of the Financial Review scarcely seems calculated to have changed the reasonable response throughout the community.  In fact, it is contradicted – the newspaper report is contradicted by what one knows the 1968 British experts considered.  They certainly would have regarded that word “possible” in the newspaper as being true only in the sense that the possibility could not be excluded as opposed to the possibility had been established.  There is a world of difference.  That is the difference between all the things we do not know about, where possibility or impossibility ‑ ‑ ‑

CALLINAN J:   Now, the Financial Review is an organ of which everybody in the community, including all employers, is supposed to be aware.

MR WALKER:   But, your Honour, this notion of trawling archivally through ‑ ‑ ‑

CALLINAN J:   That is what I am putting to you.  It seems to me to be an unusual proposition that everybody ought to have paid some attention to something that was said about a medical matter in the Financial Review in 1965.

MR WALKER:   Part of a melange of material which includes contradiction of it, or at least ‑ ‑ ‑

CALLINAN J:   And I wonder what its circulation was then, anyway.

MR WALKER:   Yes.  This notion that there is constructive notice of everything to be found in libraries, archives of newspaper files, in our submission, needs only to be stated to be rejected.  It certainly was not considered by the trial judge in any way which would link it to my client.

CALLINAN J:   Is this a correct statement, the one that appears in paragraph 98 on page 74 which is extracted from ‑ ‑ ‑

MR WALKER:   I will have to come back to Justice Gummow’s question ‑ ‑ ‑

CALLINAN J:   Yes, I am sorry to interrupt ‑ ‑ ‑

MR WALKER:   Page 98?

CALLINAN J:   Page 74 at paragraph 98, which quotes the trial judge as holding that Professor Henderson:

made it clear that her exposure was sufficient to cause her to contract the disease.

MR WALKER:   That is perhaps, to borrow a word from Justice Giles in a different context, that may be a robust statement by the trial judge, but it may be not an unfair paraphrase of what I will call current opinion at the time of the trial about actual aetiology of her disease.  But that has nothing to do with the foreseeability question which we are raising.  It is not to the point that many years, many, many years after the event, science has caught up in such a way as to say, “Here was something which we now know would be sufficient to have caused it”. 

Now, you will notice that the trial judge paraphrases the Professor’s description as being “sufficient” to have caused it.  That, of course, has nothing to say about that which was foreseeable and what the proper test for foreseeability ought to be, bearing in mind the state of the art evidence – the Financial Review certainly did not produce that – particularly in face of the material from industrial hygiene experts three years later which makes it quite clear that “possible” there is in the trivially true sense that when you do not know about something you cannot say it is not possible.  For those reasons, that dot point in paragraph 10 of my friend’s submissions is not an objection to the argument we seek to advance.

The next dot point is that we “specified the use of asbestos in the construction of its hospital”.  Well, that assumes its own conclusion.  If all asbestos is, in the smallest concentration, a res ipsa loquitur negligence case, then no doubt that would be relevant, but we wish to challenge, of course, the effective collapse of factual issues under the foreseeability calculus in Shirt – we wish to challenge just that.  The South Australian legislation does not, in fact, shift the issues to any degree at all, because of the expression “as far as practicable”. 

The next dot item, the cheapness of measures, is one which goes to the reasonableness of response.  We are, of course, challenging at an earlier stage in the whole exercise.  The seriousness of the result, naturally, is part of the reasonableness of the response and there is nothing that can be said about that.  That really means that this case is an ideal vehicle, because of the most grave consequence.  It is an ideal vehicle to raise for consideration whether the understanding or perhaps vagueness of those contrasted epithets in that paragraph of Sir Anthony’s reasons do provide a practical way, avoiding illegitimate, anachronistic, retrospective importation of current knowledge – do provide an appropriate test in cases where the evidence to which I have drawn attention clearly shows it simply was not known. 

Now, in relation to the health regulations, can I remind your Honours, page 28 of the application book, second full sentence on that page, that contains the entirety of the reasons specifically directed to the breach of statutory duty.  Remember, this is a court that does not have an appeal on questions of fact and all his Honour said was:

It was also in breach of a statutory duty imposed by the Health Act of South Australia.

Full stop.  That is it.  In the Court of Appeal a challenge to that was dismissed on page 92, paragraph 154.  At the foot of that page, that holding is quoted and then Justice Giles says at the top of page 93 that the conclusion in those brief terms:

was clearly enough arrived at for the reasons given for the tortious breach of duty.  No further reasons were required.

So there is no freestanding objection raised in relation to the statutory duty by reference to the way in which the facts are presented to this Court.  The facts in this case, perhaps unusually, in an asbestos piece of litigation, are not complicated by the peculiar procedural provisions of the Dust Diseases Tribunal about importing other findings from other cases or using evidence from other cases. 

We have the evidence of the Professor, state of art evidence.  We do not have evidence of a kind that your Honours would be familiar with in ordinary safe system of work cases, namely, what were people doing?  What were apparently responsible other employers doing about employing nursing aides in the same building as maintenance men were from time to time lifting ceiling tilings out of a modern building?  In our submission, when one comes to examine the evidence to which we have drawn attention, pages 71 and following, the fact of the matter is this was a case where whether there was any risk would have been unknown to my client, whereby it surely, if anything, moved to that end of the spectrum, if it be a spectrum, if it be a continuum, of far‑fetched and fanciful.

GUMMOW J:   Was this not just a finely balanced case which happened to go the other way?

MR WALKER:   No, there is nothing finely balanced about this material.  This material actually had the Professor embracing what was unknown and applying what might be called a precautionary principle at the level of the trial judge, “If you do not know, then you were on notice by reason of

foreseeability”.  A risk to be foreseeable must be demonstrable to be a risk, rather than simply to be something which may or may not exist.  We are not now talking about the chances of harm under a known risk.  We are talking about whether there is a risk at all at the transient, very slight, very light to light exposures which, retrospectively, Professor Henderson attributed to the plaintiff in this case.  For those reasons, this is not a finely balanced case on a question of fact.  This was really a case where there is a matter of category.  This material was capable of provoking the obligation to consider a reasonable response by reason of what is called foreseeability.

On the strength of this material, this medico-legal material, it is very difficult to understand how anybody looking at what was not known, could have described what it is that was foreseeable except that future science would probably provide answers to presently unanswerable questions.  And, in our submission, that would collapse cases about the least understood risks into cases of strict liability, which would be perverse, bearing in mind the reasonableness calculus that applies when we do understand the risk, do understand the ways in which it might be dealt with.  In our submission, it is contradictory of the reasonableness requirement at all levels of the relevant tests as presently understood in this Court.  It is contradictory to say that the less you know, the closer you approach strict liability for the defendants.  May it please your Honours.

GUMMOW J:   We do not need to call on you, Mr Jackson.

The facts in this case relating to foreseeability were finely balanced.  We do not think that it is possible to say that the trial judge and the Court of Appeal were wrong in the finding ultimately they favoured, albeit finely, namely, for the respondent’s case.

We would therefore dismiss the application with costs.

AT 10.04 AM THE MATTER WAS CONCLUDED