Kent v Wotton & Byrne Pty Ltd

[2006] TASSC 8

[2006] TASSC 8

CITATION:              Kent v Wotton & Byrne Pty Ltd [2006] TASSC 8

PARTIES:  KENT, Robert Bruce
  v
  WOTTON & BYRNE PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  BDR LCA 1/2006
DELIVERED ON:  3 March 2006
DELIVERED AT:  Burnie
HEARING DATE:  24 February 2006
JUDGMENT OF:  Blow J

CATCHWORDS:

Evidence – General – Judicial notice – Matters not requiring proof – In general – Asbestos – Possible effects of exposure.

Evidence Act 2001 (Tas), s144(1)(a).
Re E M Murray [1964 – 5] NSWR 121; Mutemeri v Cheesman [1998] 4 VR 484; X and X (1999) 26 Fam LR 51; R v Mason [2000] NSWCCA 82, referred to.
Aust Dig Evidence [3]

REPRESENTATION:

Counsel:
             Applicant:  K Brown
             Respondent:  D Crampton
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Levis Stace & Cooper

Judgment Number:  [2006] TASSC 8
Number of paragraphs:  18

Serial No 8/2006
File No BDR LCA 1/2006

ROBERT BRUCE KENT v WOTTON & BYRNE PTY LTD

REASONS FOR JUDGMENT  BLOW J

3 March 2006

1. This is a motion to review in respect of a fine of $2,500 imposed by a magistrate on the respondent.  The applicant contends that it was manifestly inadequate.  The fine was a global penalty that was imposed following pleas of guilty to two charges.  The more serious charge was one of failing to provide and maintain, so far as was reasonably practicable, a safe working environment, contrary to the Workplace Health and Safety Act 1995, s9(1)(a)(i). The less serious charge was one of undertaking asbestos removal work when not the holder of a current asbestos removal licence, contrary to the Workplace Health and Safety Regulations 1998, reg120(2).

1. The learned magistrate sentenced the respondent on the basis of facts stated by a prosecutor and by counsel for the respondent.  There was no oral evidence, and no dispute as to the stated facts.  In summary, those facts were as follows.  The workplace in question was an address in Devonport that was owned by a large public company with forestry interests.  I will refer to it as "the owner".  At that address there was a disused timber drying kiln.  The owner engaged the respondent to remove fans, motor shafts, pipework and associated equipment from the kiln.  The respondent was essentially a one-man company, with 11 employees.  It carried on a steel fabrication and boilermaking business.  To remove the items in question, it was necessary for the respondent's employees to remove part of a ceiling.  The managing director of the respondent asked a representative of the owner what the ceiling was made of.  He was told that it was Cane-Ite.  That was incorrect.  The ceiling consisted of asbestos sheeting.  The managing director believed what he had been told, and made no further enquiry.  He sent six employees to perform the contract on behalf of his company.  They smashed holes in the ceiling, lowered equipment through the holes, and removed that equipment.  They smashed the asbestos sheeting by kicking it and hammering it.  As a result they released asbestos fibres into the air and into their work environment.  The smashed sheeting was left lying where it fell.  No precautions were taken to protect the six employees from the asbestos.  No steps were taken by the respondent company to identify asbestos at the workplace before commencing the removal work.  Furthermore, some of the employees carried out the salvage work about 4 metres above a concrete floor, but the respondent company did not require them to wear safety harnesses, and they did not wear safety harnesses at any time.

1. There were significant mitigating factors.  The respondent company had been in business for 32 years.  It had no prior convictions.  Because of the nature of its work, it was most unused to encountering asbestos hazards.  The owner was in a better position than the respondent to know that the ceiling contained asbestos.  The respondent relied on the owner's representative's false assertion that the ceiling was made of Cane-Ite.  The respondent's contract price for the job in question was only $4,033.  It was a small private company.  Safety harnesses and all necessary associated equipment were provided in the vehicles used by the employees.  The company pleaded guilty at the earliest opportunity.  Diagnostic tests were arranged for the six employees following their exposure to asbestos, and were to be repeated after the matter was before the learned magistrate.  No adverse effects had been detected by the first round of testing.

1. When stating the facts to the learned magistrate, the prosecutor referred to the possible "serious effects of asbestosis", but nothing was said as to what those effects were, nor as to how long it could be after exposure to asbestos before a resulting medical condition might become detectible.  Counsel for the respondent told the learned magistrate that the managing director would not have taken on the job if he had known that the ceiling contained asbestos.  That was an acknowledgment of the dangerousness of exposure to asbestos, but nothing was said to the learned magistrate as to how much harm can result from exposure to asbestos, or when.  Since the learned magistrate was told that there was to be a second round of testing for the exposed employees, he should have inferred that there was a significant risk that one or more of them might still suffer significant harm.

1. Before me, counsel for the applicant made a submission to the effect that the amount of the fine suggested that the learned magistrate had not paid sufficient regard to the possible consequences of asbestos exposure.  Counsel for the respondent conceded that a magistrate may take judicial notice of the fact that asbestos can be deadly, but submitted that it was not open to the learned magistrate to take judicial notice of any facts as to how long after exposure the symptoms of a resulting medical condition might become detectible, nor as to the strength of the chance that any of the employees could be adversely affected by their exposure. 

1. The competing submissions of counsel raise the question of the extent to which the learned magistrate could or should have taken judicial notice of the effects of the asbestos exposure.  The common law as to courts taking judicial notice of matters of common knowledge has been superseded by the Evidence Act 2001, s144, which reads as follows:

"144     (1) Proof is not required about knowledge that is not reasonably open to question and is –

(a)     common knowledge in the locality in which the proceeding is being held or generally; or

(b)     capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2)   The judge may acquire knowledge referred to in subsection (1) in any way the judge thinks fit.

(3)   The court, including the jury if there is a jury, is to take knowledge referred to in subsection (1) into account.

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

1. Because of the wording of s144(1)(a), it is necessary to consider the extent to which facts concerning the consequences of exposure to asbestos are common knowledge in Tasmania generally, and not reasonably open to question. There are of course a number of reported cases as to whether judicial notice may or may not be taken of certain medical and scientific facts without any evidence or enquiry by a court. Some of those cases have been decided in accordance with common law principles. Others have been decided in accordance with the counterpart of s144 in other jurisdictions. My research has not revealed any such case relating to asbestos exposure. The reported cases all depend on their own facts, and are therefore of limited use. However it is worth reviewing some of them in order to see how far the courts are prepared to go in accepting medical and scientific facts to be common knowledge.

1. In Re E M Murray [1964 – 5] NSWR 121 at 122, Hardie J took judicial notice of the facts that, at the time of a will being made in 1958, cancer constituted a major health problem in the community; research into its causes, treatment and control had been going on for many years in various parts of the world; and little, if any, progress had been made towards arresting or controlling it.

1. In Mutemeri v Cheesman [1998] 4 VR 484 at 492, Mandie J held that a court would be well justified in taking judicial notice of the fact that HIV is a life endangering disease, but held that it was not open to a magistrate to be satisfied beyond reasonable doubt that an HIV positive man's conduct in engaging in acts of sexual intercourse with a woman exposed that woman to an appreciable risk of death, as distinct from a mere possibility of death.

1. In X and X (1999) 26 Fam LR 51, the Full Court of the Family Court considered the extent to which a trial judge was entitled to take judicial notice of the effects of genital herpes pursuant to s144(1). The trial judge had proceeded on the basis that it was generally known that genital herpes was a condition that may be incurable; that it may be dormant for lengthy periods; and that it may surface from time to time. Nicholson CJ, with whom Ellis and Watt JJ agreed, concluded that the application of the test prescribed by s144 would not have permitted the trial judge to have accepted without proof the range of facts upon which he relied on the basis of his own knowledge.

1. In R v Mason [2000] NSWCCA 82, a sentencing judge had taken judicial notice of the proposition that the excessive use of amphetamines can induce states that are indistinguishable from paranoid schizophrenia, and are sometimes irreversible. Abadee J, with whom James J agreed, took the view that the sentencing judge had erred in taking judicial notice of those matters. At par24 his Honour said:

   "I consider that care should be taken by a sentencing judge that he or she does not permit to intrude into his reasons for sentencing, views that may or may not have been formulated based upon his own or her own perhaps private experiences in life, or even acquired from judicial experiences as the case may be."

2. Against the background of those decided cases, I need to make my own assessment as to what facts are or are not common knowledge in relation to the effects of asbestos exposure.  It is generally known that asbestos is dangerous, and can be deadly.  The removal of asbestos, both from buildings still in use and from buildings being demolished, and the extreme care that needs to be taken by workers involved in its removal, are now facts of modern life.  I think it is generally known that it is inhalation of asbestos that can result in death.  But is it common knowledge that the symptoms of a medical condition caused by asbestos exposure might not be detectible until years after the exposure?  And is it common knowledge that such a condition, not detected until years after the exposure, can prove fatal?  Judges and lawyers familiar with personal injuries litigation are likely to be aware of those facts, particularly because of the problems that plaintiffs with asbestos-related diseases and similar complaints have in relation to limitation periods.  See Cartledge v E Jopling & Sons Ltd [1963] AC 768. But are ordinary members of the Tasmanian community generally aware of those facts? I think they are. There has been substantial media publicity in Australia in recent decades not just as to asbestos exposure sometimes being fatal, but also as to fatal asbestos-related illnesses becoming detectible many years after the exposure to asbestos. In my view there has been sufficient public discussion of asbestos exposure and its effects for it now to be commonly known that a person exposed to asbestos might not have any detectible medical condition as a result for many years, but might still become ill and die as a result of that exposure.

1. There is no suggestion that the learned magistrate was obliged to make reference to any authoritative publication about asbestos-related illnesses, though it would have been open to him to have done that in accordance with s144(1)(b). However I think the learned magistrate should have taken judicial notice of the facts that, despite the first round of testing not revealing any medical problems, there remained a risk that one or more of the six exposed employees might die as a result of this asbestos exposure; of the fact that there was a risk that a fatal illness caused by this exposure might become detectible in one or more of the six employees some years in the future; and of the fact that each of those six employees would have to live with those risks for years to come. In order to decide how much to fine the respondent, the learned magistrate needed to make some evaluation of the seriousness of these offences. Since almost nothing had been put to him as to the consequences of the employees' exposure to the asbestos, it was necessary for him to take judicial notice of matters of common knowledge for the purpose of assessing the possible or likely consequences. The fact that he fined the respondent only $2,500 indicates in my view that he erred, either by not taking those matters into account, or by giving them insufficient weight.

1. In a nutshell, I think the penalty is manifestly inadequate because this asbestos exposure could result in the death of one or more of the exposed employees, and because all six will have to live in a state of uncertainty for years to come as to whether they will die early deaths.  However I accept that the learned magistrate was not entitled to take judicial notice of any facts as to the strength of the risks of harm in relation to exposure to a particular quantity of asbestos, or exposure over a particular time, or exposure with a particular degree of proximity.  Those are not matters of common knowledge, in my view.

1. Counsel made submissions to me as to the significance or otherwise of the maximum penalties prescribed in respect of the relevant offences. The maximum fine for a corporation under s9 is $150,000. The maximum fine under reg120(2) is $10,000. However, because of the mitigating circumstances that I have referred to, I think an appropriate fine would be one nowhere near the combined maximum of $160,000. A useful summary of such fines and comparable fines is appended to the judgment of Slicer J in Lactos Pty Ltd v Kent [2003] TASSC 82.

1. Counsel for the applicant drew my attention to the requirements that need to be satisfied by an applicant for an asbestos removal licence.  They are listed in the Workplace Health and Safety Regulations, reg121(3). An applicant needs to be competent to carry out such work, to have relevant work experience, to have passed an examination and completed a training course, to possess or have access to all appropriate equipment, to be able to provide appropriate training and supervision, and to provide evidence of an appropriate workers' compensation insurance policy. It seems unlikely that the respondent or its managing director could have satisfied all those requirements without a great deal of effort and expenditure. However I think that is of little relevance. The company had no intention of undertaking asbestos removal work. The really serious aspect of these offences is that six men have been exposed to risks of illness and death, and to years of uncertainty. The lack of the requisite licence is a minor consideration. The suitability of the respondent or its managing director as a candidate for such a licence is of only peripheral significance.

1. It is clear that the managing director works closely with the respondent's employees.  I do not think the respondent is a company that needs to be heavily fined in order to deter it from re-offending.

1. I think it is preferable that I dispose of this matter by re-sentencing the respondent myself, rather than remitting the matter to the Magistrates Court.  In all the circumstances, I think the appropriate global penalty would be a fine of $8,000.  I therefore order that the motion to review be allowed, and that the orders of the learned magistrate be varied by increasing the fine of $2,500 to a fine of $8,000.