Lowes v Amaca Pty Ltd
[2011] WASC 287
•26 OCTOBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: LOWES -v- AMACA PTY LTD (formerly James Hardie & Co Pty Ltd) [2011] WASC 287
CORAM: CORBOY J
HEARD: 19-30 APRIL, 14-16 JUNE 2010, 19 MAY, 31 AUGUST, 9 & 13 SEPTEMBER 2011
DELIVERED : 26 OCTOBER 2011
FILE NO/S: CIV 1980 of 2009
BETWEEN: SIMON LOWES
Plaintiff
AND
AMACA PTY LTD (formerly James Hardie & Co Pty Ltd)
Defendant
Catchwords:
Tort - Negligence - Whether the plaintiff was exposed to respirable asbestos fibres as a result of the defendant disposing of asbestos cement waste at a site to which the public had access - Reasonable foreseeability of harm from dumping asbestos cement waste - Whether the defendant owed a duty of care in disposing of asbestos cement waste - Whether the plaintiff a member of the class of persons to whom a duty was owed - Whether duty breached - Principles relevant to determining causation - Whether the defendant's breach exposed the plaintiff to a risk of harm that actually eventuated - Whether the defendant's breach caused or materially contributed to the development of the plaintiff's mesothelioma - Whether the defendant's breach increased the risk of the defendant contracting mesothelioma
Legislation:
Evidence Act 1906 (WA), s 72, s 79C
Result:
Defendant liable to the plaintiff for damages assessed at $2,068,396.93
Category: B
Representation:
Counsel:
Plaintiff: Mr M J Joseph SC, Mr J R C Gordon & Mr M J Magazanik
Defendant: Mr G M Watson SC, Ms J M Kubacz & Mr D M McKenna
Solicitors:
Plaintiff: Slater & Gordon
Defendant: Jarman McKenna
Case(s) referred to in judgment(s):
(Re Jones‑Mashman) Amaca Pty Ltd v CSR Ltd (No 2) [2009] NSWDDT 24
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Aerospace Engineering Services Pty Ltd v Ibrahim [2007] WASCA 33
Allen v Tobias (1958) 98 CLR 367
Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158; (2007) 34 WAR 109
Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Moss [2007] WASCA 162
Amaca Pty Ltd (Under NSW Administered Winding Up) v Booth [2010] NSWCA 344
Amaca Pty Ltd (Under NSW Administered Winding Up) v Booth [2011] HCATrans 152
Amaca Pty Ltd v Ellis [2010] HCA 5; (2010) 240 CLR 111
Bale v Seltsam Pty Ltd [1996] QCA 288
Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Betts v Whittingslowe (1945) 71 CLR 637
Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Booth v Amaca Pty Ltd and Amaba Pty Ltd [2010] NSWDDT 8
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
British American Tobacco Australia Services Ltd v Cowell [2003] VSC 43; (2003) 8 VR 571
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 259 ALR 616
Casley‑Smith v FS Evans & Sons Pty Ltd [No 4] (1988) 49 SASR 339
Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155
Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469
Commercial Union Assurance Co of Australia Ltd v Beard [1999] NSWCA 422; (1999) 47 NSWLR 735
Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338
CSR Ltd v Wren (1997) NSWLR 463; (1998) 15 NSWCCR 650
CSR Ltd v Young (1998) 16 NSWCCR 56
Donoghue v Stevenson [1932] AC 562
Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317
Easther v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2001] WASC 328
Ellis, Executor of the Estate of Paul Steven Cotton (Dec) v The State of South Australia [2006] WASC 270
Eltran Pty Ltd v Westpac Banking Corporation (1990) 98 ALR 141
EM Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434
Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10
Evans v Queanbeyan City Council [2011] NSWCA 230
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32
Flounders v Millar [2007] NSWCA 238
Geneva Finance Ltd (Receiver and Manager Appointed) v Boys [2001] WASC 348
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310
Hearne v Street [2008] HCA 36; 235 CLR 125
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209
James Hardie & Coy Pty Ltd v Roberts [1999] NSWCA 314; (1999) 47 NSWLR 425
John Pfeiffer Pty Ltd v Canny [1981] HCA 52; (1981) 148 CLR 218
Johnson v Rea Ltd [1961] 3 All ER 816; 1 WLR 1400
Jones v Dunkel (1959) 101 CLR 298
Julia Farr Services Inc v Hayes [2003] NSWCA 37
Kirkpatrick v Babcock Australia Pty Ltd [2009] NSWDDT 4
Ling v McDonald [1988] Tas R (NC) N17
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73
McGhee v National Coal Board (1973) SC(HL) 37; [1972] 3 All ER 1008; [1973] 1 WLR 1
McGilvray v Amaca Pty Ltd (Formerly James Hardie & Coy Pty Ltd) [2001] WASC 345
McPherson's Ltd v Eaton [2005] NSWCA 435; (2005) 65 NSWLR 187
Misiani v Welshpool Engineering Pty Ltd [2003] WASC 263
Mooney v Amaca Pty Ltd [2009] NSWDDT 23
Moss v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 311
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486
Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631
Nicholson v Knaggs [2009] VSC 64
Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2009] QCA 345
Orica Ltd v CGU Insurance Ltd [2003] NSWCA 331; (2003) 59 NSWLR 14
Osborne v Landpower Developments Pty Ltd (in liq) [2003] WASCA 117
Parkinson v Lend Lease Securities and Investments Pty Ltd [2010] ACTSC 49
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Research in Motion Ltd v Samsung Electronics Australia Pty Ltd [2009] FCA 320; (2009) 255 ALR 508
Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALR 653
Roberts v Amaca Pty Ltd [2009] NSWDDT 28
Rolls Royce Industrial Power (Pacific) Ltd (Formerly John Thompson (Australia) Pty Ltd) v James Hardie and Coy Pty Ltd [2001] NSWCA 461
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Rowe v Silverstein [2009] VSC 157
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2009) 49 NSWLR 262
Seltsam Pty Ltd v McNeill [2006] NSWCA 158; (2006) 4 DDCR 1
Shirt v Wyong Shire Council [1978] 1 NSWLR 631
Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; 2 WLR 523
Smith v New South Wales Bar Association (1992) 176 CLR 256
Snorkel Elevating Work Platforms Pty Ltd v Borren Metal Forming Ltd [2010] ACTCA 23
Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 110 ALR 685
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Suosaari v Steinhardt [1989] 2 Qd R 477; (1989) Aust Torts Rep 80‑268
Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51
Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
Thatcher v Charles (1961) 104 CLR 57
The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239 (2008) 39 WAR 1
The Ophelia [1916] 2 AC 206
The State of South Australia v Ellis [2008] WASCA 200; (2008) 37 WAR 1
Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; 50 ALJR 720
Uniflex (Australia) Pty Ltd v Hanneybel [2001] WASC 138
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167
Walker v Walker (1937) 57 CLR 630
Wall v Cooper [2006] WADC 81
Wall v Cooper [2008] WASCA 53
Watson v Foxman (1995) 49 NSWLR 315
Winmar v The State of Western Australia [2007] WASCA 244
Wyong Shire Council v Shirt (1980) 146 CLR 40
TABLE OF CONTENTS
The action and the result
Asbestos‑related diseases
The uncertain pathogenesis of mesothelioma
Asbestos exposure and asbestos‑related diseases
Measurement of exposure
Dose
The different types of asbestos
The latency period
Background exposure
Measurement of the risk from exposure
Other preliminary matters
Research and epidemiological publications
The plaintiff's submissions
The plaintiff's possible exposure to asbestos
The plaintiff's visits to Castledare
The dumping of waste material by the defendant at Castledare - introduction
The pleadings and the issues
The available evidence
The evidence on the dumping of waste at Castledare
The Castledare miniature railway
The defendant's contemporaneous records
Minutes of the factory manager's conference June 1967
Survey of industrial hygiene February 1971
Minutes of the environment control committee March 1971
Inter-house letter March 1972
Waste asbestos tips survey June 1972
Dr McNulty's evidence
Ms Lowes' evidence
Mr Polinelli's evidence
Mr Wagland's evidence
Mr Tavani's evidence
Mr Dalton's evidence
Mr Holmes' evidence
Mr Waugh's evidence
Mr Clifton's evidence
Mr Winters' evidence
Document '689'
Some preliminary observations on the evidence
What was dumped at Castledare by the defendant?
The matters to be decided
The parties' submissions
Was asbestos waste from Rivervale dumped at Castledare?
Was the waste material asbestos waste or asbestos cement waste?
When did the defendant cease using crocidolite at Welshpool?
The product mix specifications in the late 1960's/early 1970s
Did the defendant dump raw asbestos fibre at Castledare?
Did the asbestos waste include or release respirable asbestos fibres?
When was waste material dumped by the defendant at Castledare?
The parties' submissions
Findings about Mr Clifton's evidence
Findings on Mr Winters' evidence
Findings on Mr Holmes' evidence
Findings on Mr Waugh's evidence
Findings on the evidence of Mr Dalton
The defendant as the only manufacturer of asbestos cement products
When did the dumping cease?
Where was the asbestos waste dumped at Castledare?
The parties' submissions
The significance of Dr McNulty's evidence
Other evidence relied on by the plaintiffFindings
What happened when the waste was dumped?
What happened after the defendant ceased dumping at Castledare?
What did the defendant know about the dumping and dispersal of asbestos cement waste at Castledare?
Summary of findings on the disposal of asbestos waste at Castledare
The plaintiff's exposure to asbestos dust and fibres while visiting Castledare
The exposure of residents and visitors to the waste material
Duty of care
The pleadings
The parties' contentions
The source of the duty
The content of the duty and some complications
An established duty?
Duty of care - legal principles
The relevance of the relationship between asbestos exposure and asbestos‑related diseases to the duty question
The approach that has been taken
Reasonable foreseeability and the defendant's knowledge
Pleadings and issues
How the plaintiff sought to prove what was reasonably foreseeable
The defendant's contentions on reasonable foreseeability
The concept of knowledge and proof of knowledge
Medical and scientific knowledge by the mid‑1960s
Further developments in medical and scientific knowledge from the mid‑1960s to the mid‑1970s
Professor Berry's evidence
Conclusions on medical and scientific knowledge by the mid‑1970s
The defendant's knowledge by June 1968
The defendant's knowledge in the early 1960s
The mid‑1960s
Mr Russell's evidence
When did the defendant first learn of the study by Drs Wagner and Sleggs?
Should knowledge of the study or its findings be imputed?
Other evidence of the defendant's knowledge of the study by Drs Wagner and Sleggs
Evidence of the defendant's knowledge of other epidemiological studies
The factory managers' conferences of 1966 and 1967
Other documents relevant to the state of the defendant's knowledge by about June 1968
The defendant's waste disposal 'policy'
The possible employment of older workers
Evidence of the defendant's knowledge between 1969 and 1974
Regulations and industry codes
Dr McNulty's evidence and the alleged admission by Mr Palfreyman
Mr Winters' evidence
Dr Gardiner's evidence
Mr Pickford's evidence
The Wunderlich memos
The disposal of asbestos cement waste
The decision to cease using crocidolite
Findings about the defendant's knowledge
The defendant's knowledge as at the mid 1960s
The defendant's knowledge between the mid‑1960s and June 1968
The defendant's knowledge between mid‑1968 and 1973
Was a duty of care owed?
Was a duty owed from June 1968?
Was a duty owed prior to June 1968?
Was the duty owed to the plaintiff?
Conclusion on whether a duty of care was owed
Was the duty breached if the dumping occurred after June 1968?
The parties' submissions
Did the defendant breach its duty by deciding to dump waste at Castledare?
The involvement of the Christian Brothers and the defendant's knowledge of how the waste material was being used
Covering the waste material
Remediation
Warnings
The defendant's submission concerning Dr McNulty's letter of November 1972
The defendant's submission concerning Dr McCullagh's response to Mr Winters' report
The use of other sites that were not 'controlled' tips
The NHMRC exposure guidelines
A concluding comment on breach
Was the duty breached if the defendant commenced dumping waste at Castledare before June 1968?
The availability of other sites
Causation and the possible sources of exposure
The plaintiff's possible exposure to asbestos while working in the mining industry
Background exposure
The plaintiff's submissions
The defendant's submissions
The plaintiff's background exposure
The level of background exposure and risk
Background exposure and peritoneal mesothelioma
Causation
A preliminary comment on causation in mesothelioma cases
Causation in mesothelioma cases in the United Kingdom
The cumulative effect theory
Hannell, Moss and Ellis
The principles in Hannell
The different views of the expert evidence
The majority's analysis of the relevant principles of causation in Hannell
The majority's view of the medical evidence and the applicable principles of causation in Hannell
A further explanation in Ellis
The relevant principles to be applied according to Martin CJ in Hannell
Martin CJ's view in Ellis of the majority reasoning in Hannell
Moss
Amaca v Ellis
Evans v Queanbeyan City Council
The plaintiff's contentions on the relevant legal principles
The defendant's approach to the relevant legal principles
The approach that has been taken to determining causation
The parties' submissions on causation generally
The plaintiff's expert evidence on causation
Professor Musk
Professor Robinson
Dr Leigh
The defendant's expert evidence on causation
Mr Pickford
The estimate of dose made by Mr Pickford
Hodgson and Darnton (2000)
Mr Pickford's calculation of RR
Dr Leigh's criticisms
Some comments on Mr Pickford's evidence
Dr Gardiner
Professor Fox
Professor Berry
The ultimate finding on causation
Considerations relevant to the findings made on causation
The finding on causation applying Seltsam v McGuiness
The finding on causation applying the majority view in Hannell
Causation if the asbestos dumped at Castledare included crocidolite
Assessment of damages
The parties' submissions
The plaintiff's evidence
General damages
Loss of expectation of life
Past economic loss
Past loss of superannuation
Past medical and out of pocket expenses
Past care
Future loss of earning capacity and lost years
Future superannuation benefits
Future medical expenses
Other future out of pocket expenses
Future care
The award of damages
The objections to Dr McNulty's evidence
Other evidentiary objections
The applications to reopen
CORBOY J:
The action and the result
The plaintiff suffers from malignant peritoneal mesothelioma. He alleges that he was exposed to asbestos dust during childhood visits to a miniature railway located in the grounds of the Castledare Boys Home and that as a consequence, he inhaled asbestos fibres that caused or materially contributed to his disease. He further alleges that the asbestos dust and fibre to which he was exposed was generated from waste material dumped by the defendant in breach of a duty of care owed to a class of persons that included visitors to Castledare.
The defendant (which was previously known as James Hardie & Co Pty Ltd) admits that the plaintiff suffers from peritoneal mesothelioma and that it supplied asbestos cement waste to Castledare between 1971 and early 1973 at the request of the Catholic Church. It otherwise denies the allegations made by the plaintiff.
I have found that the defendant is liable to the plaintiff in negligence and have assessed the plaintiff's damages at $2,068,396.93.
The factual and legal issues to be decided in this matter are numerous and complex. No systematic attempt has been made to summarise those issues in the introduction to these reasons. Rather, the issues as they emerged from the pleadings, the evidence and the parties' submissions are identified in the relevant parts of the reasons.
It will, however, be helpful to commence by making some preliminary observations on the relationship between exposure to asbestos and asbestos‑related diseases. The matters referred to in this introductory section provide important context for identifying and determining many of the issues that arise in this action.
Asbestos‑related diseases
Professor Musk is an eminent specialist in respiratory medicine who has published extensively on asbestos‑related diseases. This section of the reasons is drawn from a statement of the substance of his evidence (exhibit 35) that formed part of his evidence‑in‑chief. It refers to matters on which he was not cross‑examined and which may be accepted as being uncontroversial.
The harmful effects of exposure to asbestos fibres may be divided into benign and malignant sequelae. The malignant sequelae of asbestos exposure are mesothelioma of the pleura, peritoneum, pericardium and the tunica vaginalis and lung cancer and other tumours, including tumours of the larynx and stomach. Benign sequelae of asbestos exposure include asbestosis, diffuse pleural thickening, pleural effusion and pleural plaques.
Mesothelioma refers to a malignant tumour arising from mesothelial cells. The outside of the lungs and the inside of the chest consist of a thin, moist layer of mesothelial cells. That tissue is known as the pleura so that a malignant tumour arising from the pleural mesothelium is known as a malignant pleural mesothelioma. Identical mesothelial cells line the abdominal cavity and cover the viscera in the abdomen known as the peritoneum. A malignant tumour arising from the peritoneal mesothelium is known as a malignant peritoneal mesothelioma.
A bronchogenic carcinoma (lung cancer) is a malignant tumour arising from the airways and airspaces of the lungs. Asbestosis also affects the walls of the airspaces and smallest conducting airways of the lungs. It causes inflammation that leads to scarring (fibrosis) of the walls of the small airways and airspaces. Diffuse pleural thickening is a condition where the pleural lining of the chest wall becomes generally thickened and inflamed. Benign asbestos pleural effusion is an accumulation of fluid in the pleural cavity resulting from asbestos exposure. Pleural plaques are localised areas of thickening on the inner pleural lining of the chest wall.
The uncertain pathogenesis of mesothelioma
There was evidence suggesting that a mesothelioma may develop without any apparent exposure to asbestos; for example, Dr Gardiner, a chest physician, referred to cases of 'spontaneous' mesothelioma (ts 521 ‑ 522). However, mesothelioma is a disease that is generally associated with exposure to asbestos. Dr Leigh, an occupational physician, stated that it was possible to attribute almost all cases of human mesothelioma to asbestos or erionite exposure (erionite is a non‑asbestos fibre found in rock in certain areas of Turkey; see exhibit 34, 'BTS statement on malignant mesothelioma in the UK, 2007' published by the British Thoracic Society).
The mechanism by which asbestos fibres cause mesothelioma is not completely understood. The extent of the uncertainty surrounding the pathogenesis of mesothelioma and the implications of that uncertainty for the plaintiff's claim are issues that are subsequently considered in the context of causation. As will be seen, the uncertainty has significant consequences for the legal principles to be applied.
Asbestos exposure and asbestos‑related diseases
The matters referred to in this section are generally taken from the evidence of Professor Musk, Dr Leigh and Mr Pickford. I accept their evidence on those matters.
Mr Pickford is an occupational hygienist who was for many years involved in research undertaken by the National Health and Medical Research Council (NHMRC) into testing asbestos exposure. There was a challenge to Mr Pickford's expertise to express an opinion on certain matters. That challenge was rejected (see ts 624 ‑ 638). However, what is discussed in this section of the reasons is not contentious.
Measurement of exposure
Exposure to asbestos dust and fibres can be expressed in at least two ways. First, a measurement can be made of the number of asbestos dust particles or fibres in a given volume of air at the time of measurement. The measurement is generally expressed in terms of millions of particles per cubic foot (mppcf) or the number of fibres per cubic centimetre (f/cc) or fibres per millilitre of air (f/ml). The evidence disclosed that for some time regulations and guidelines suggested a maximum exposure level of 5 mppcf. That number of particles per cubic foot of air would be invisible to the human eye (Dr Gardiner, ts 526).
Second, exposure may be measured across time so as to derive an estimate of the cumulative exposure to which a person has been subjected. Cumulative exposure is quantified in terms of fibres per millilitre of air multiplied by years of exposure (expressed as 'x f/ml years'). That measure of cumulative exposure reflects two variables: the concentration of fibres in the air and the duration of exposure (Dr Leigh, ts 305 and see the report of Mr Pickford dated 14 January 2010 (exhibit 72)). So for example, exposure to one fibre per millilitre of air for 10 years results in a cumulative exposure of 10 f/ml years (as would exposure to 10 fibres per millilitre of air for one year).
Dose
There is a direct relationship between exposure to asbestos and the risk of contracting an asbestos‑related disease, including mesothelioma; that is, the greater the amount of exposure (referred to as the 'dose'), the greater the risk of harm. There was evidence (which I accept) suggesting a non-linear relationship between cumulative exposure to asbestos fibres and the rate of pleural to peritoneal mesotheliomas. The effect of that relationship is that pleural mesothelioma is more common than peritoneal mesothelioma at lower levels of exposure so that peritoneal mesothelioma is generally associated with higher exposures.
The experts who gave evidence in this matter defined dose adjectivally - generally, exposure was referred to as being 'high', 'low', 'intense' or 'intermittent' or variants of those terms. Similar terms were used in the epidemiological studies and other research papers that were tendered. No evidence was led as to whether there was an accepted standard by which the level of exposure was characterised; for example, whether so many fibres per millilitre was a 'high', 'low' or 'intense' exposure. The only indication of a systematic attempt to categorise dust concentrations by such descriptions that I was able to locate in the evidence was in a publication by the Committee on Hygiene Standards of the British Occupational Hygiene Society, 'Hygiene Standards for Chrysotile Asbestos Dust' (exhibit 191, tab 43). The classification in that publication was by reference to a time‑weighted average concentration over three months. There was no evidence by which a classification made on that basis could be related to the designations used by the witnesses in this matter (or indeed, to the measurements of exposure that were referred to in the evidence). It should also be noted that another expert witness, Professor Berry, observed that what was regarded as 'relatively light [exposure] in 1965 will probably be considered quite high today' (ts 761). How perceptions of exposure levels have changed over time was not explained by the evidence other than inferentially by the accumulation of knowledge about the relationship between exposure and the risk of harm.
The different types of asbestos
A second factor describing the relationship between asbestos exposure and the risk of harm is fibre type. There are three types of asbestos that were particularly relevant in this matter: crocidolite (blue asbestos); amosite (brown asbestos); and chrysotile (white asbestos). Crocidolite and amosite are amphibole minerals, while chrysotile is a serpentine mineral.
Each form of asbestos has different physical and chemical properties. For example, the fibres of crocidolite and amosite asbestos tend to be thinner, sharper and straighter than the fibres of chrysotile asbestos, which are generally curlier by comparison (Professor Musk, ts 359 ‑ 360).
Epidemiological studies have demonstrated a variable relationship between asbestos fibre type and mesothelioma. Crocidolite is the most toxic, amosite is the next most potent and chrysotile is the least dangerous. The deposition in and clearance of fibres from the lungs varies between the fibre types (I infer, because of their different physical characteristics) and this may provide one explanation for the relationship (Professor Musk, ts 360 ‑ 361).
While the relative potency of different fibre types was not in issue, there were aspects of the relationship between mesothelioma and exposure to chrysotile in particular that the defendant maintained were relevant to duty, breach and causation. The defendant submitted that the relationship between asbestos exposure and mesothelioma was identified in about 1960 and that 'at first, the research into mesothelioma was closely connected with crocidolite' so that 'whether other types of asbestos could cause mesothelioma was a matter of debate' (defendant's closing submissions, proposition seven). It was further submitted that, 'even today a question remains as to whether chrysotile causes pleural mesothelioma' (defendant's closing submissions, proposition eight).
Dr Leigh gave evidence that a further form of amphibole asbestos, tremolite, was a common contaminant of some chrysotile mineral deposits and that it had a 'mesothelioma potency' similar to crocidolite (exhibit 26, report dated 7 December 2009). He stated that some researchers considered that 'much of the mesothelioma potency of commercial chrysotile is due to the tremolite contaminant' but that this was, in his opinion, debatable. He also stated that it was 'very difficult if not impossible' to separate tremolite from chrysotile in the final commercial product. Professor Musk's evidence was that the 'chrysotile question' was not 'really clear because of the possibility of contamination of most chrysotile deposits' (ts 388).
There were also brief references in the evidence to other forms of asbestos mineralisation ‑ actinolite and anthophyllite. Those forms of mineralisation were said to be found in Western Australia. However, there was no evidence as to the relationship, if any, between exposure to actinolite and asbestos‑related disease and only passing references to a view held in the 1970s that mesothelioma was not caused by exposure to anthophyllite.
The latency period
The third factor describing the relationship between asbestos exposure and the risk of contracting an asbestos‑related disease is the latency period; that is, the time elapsed from first exposure to the onset of symptoms. There was no issue that generally mesothelioma has a long latency period, most of the evidence suggesting at least ten years and usually much longer. The plaintiff contended that the period between his childhood visits to Castledare and the onset of his illness was around the median latency period for mesothelioma and that this was a significant factor in determining causation.
The length of the latency period for mesothelioma reflects the biological processes by which the cancer develops. It is postulated on the basis of epidemiological studies that the risk of contracting mesothelioma increases exponentially with time from exposure. Professor Musk stated (exhibit 35, page 6):
There are clear dose-response relationships for mesothelioma and lung cancer. Both malignant mesothelioma and lung cancer risks increase with time since first exposure, especially mesothelioma (to the power of 3.6) with years from first exposure (after first 10 years).
The notion that the rate of mesothelioma increases exponentially over time from the date of first exposure was not disputed. In addition to Professor Musk, Professor Robinson, a specialist in respiratory medicine, expressly referred to the exponential increase in risk over time (for example, at ts 534) and Dr Leigh accepted the concept (ts 321). Professor Berry, who is a biostatistician and epidemiologist, gave a detailed explanation of the mathematical model by which the relationship was described (sometimes called the 'Peto model' or the 'Peto relationship') (exhibit 80). The implication of the power relationship is that 'at any time it is the early periods of exposure that cause the greatest risk' (exhibit 80, par 2.4).
Finally, it should be noted that asbestos fibres do not readily degrade and they are 'biopersistant'; that is, they are not readily cleared from the body. Some researchers link biopersistence to the long latency period for mesothelioma (Dr Leigh, ts 319).
Background exposure
It was not in issue that there are respirable asbestos fibres in the atmosphere (at least in urban communities) as a result of the widespread use of asbestos during the last century. Professor Robinson observed in his report dated 8 April 2010 (exhibit 44), that the plaintiff would have experienced 'the standard exposure of similar individuals growing up in similar communities in Australia'. Findings are made later in the reasons about the circumstances in which the plaintiff was exposed to such atmospheric asbestos fibres (which I will refer to as ambient asbestos) that are consistent with that observation. The exposure to ambient asbestos is generally referred to as 'background' exposure.
Attempts have been made to quantify the risk of contracting mesothelioma from background exposure (the risk being referred to as 'background' risk). Those studies involved reviewing patient histories to ascertain whether there had been a 'specific' exposure to asbestos during a patient's lifetime. The cause of the patient's mesothelioma was attributed to background exposure where no specific exposure was reported. Obviously, accurate quantification depended on the reliability of the patients' histories. Given the long latency periods typical for mesothelioma, cases attributed to background exposure will inevitably include instances where a patient had forgotten or was unaware of a past episode of specific exposure and also, where an inadequate history had been elicited (Professor Musk, ts 364 ‑ 365). This case provides such an example ‑ the plaintiff had no recollection of being taken to Castledare as a child and the possibility that he was exposed to asbestos during those visits was raised by his mother's evidence. Logically, an estimate of background risk may also include cases of 'spontaneous' mesothelioma if, indeed, exposure to asbestos is not implicated in every case.
Evidence concerning the level of background risk and how it compared to the risk, if any, of the plaintiff contracting mesothelioma as a result of his childhood visits to Castledare lies at the heart of the defendant's contention that the plaintiff has failed to prove that his mesothelioma was causally related to any exposure to the waste material it dumped at Castledare.
There can be some confusion in terminology when discussing background risk. Epidemiological studies often distinguished between occupational and non‑occupational exposures. Non‑occupational exposures may include the members of an asbestos worker's family and those who lived close to an asbestos mine or factory. Generally, asbestos‑related diseases in those persons are not attributed to 'background' exposure but to an identifiable (specific) source of exposure and concomitant risk. Some researchers refer to non‑occupational but identifiable exposures as 'environmental'; see, for example, the evidence of Dr Leigh at ts 299 and Dr Gardiner at ts 495. The terms 'background exposure' and 'background risk' are used throughout the reasons to refer only to exposure to ambient asbestos and the risk of contracting mesothelioma from that exposure.
Measurement of the risk from exposure
Much of the knowledge about the relationship between exposure to asbestos and asbestos-related diseases has been acquired through epidemiological studies. Many epidemiological studies employ a measure, 'relative risk', to mathematically express an increase in the risk of harm from a particular source. Relative risk (RR) is a ratio derived from measurements or estimates of a person's exposure to, in this instance, asbestos fibres from a specific source. In The State of South Australia v Ellis [2008] WASCA 200; (2008) 37 WAR 1, Steytler P and McLure JA at [304] adopted what was said by Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2009) 49 NSWLR 262 [67] to describe the concept of relative risk:
Most epidemiological studies identify the strength of an association by a measure called relative risk (RR). RR is defined as the ratio of the incidence of disease in exposed individuals compared to the incidence in unexposed individuals. If the relative risk equals 1.0, the risk in exposed individuals is the same as the risk in unexposed individuals. If the relative risk is greater than 1.0 the risk in exposed individuals is greater than the risk in unexposed individuals.
It follows that an RR of 2.0 indicates a 50% probability that a patient's mesothelioma was caused by the specific exposure that was estimated (and see the discussion of relative risk in Hamer D, 'Mind the "Evidential Gap": Causation and Proof in Amaca Pty Ltd v Ellis' (2009) 31 Sydney LR 465).
Other preliminary matters
Research and epidemiological publications
Both parties tendered a number of research publications said to be relevant to the reasonable foreseeability of harm from exposure to asbestos or to causation. Some of the publications were separately tendered as exhibits - for example, exhibits 120 ‑ 123. However, a number of the publications were tendered as bundles collectively forming a single exhibit: exhibit 191 was a bundle of 56 government and research articles tendered by the plaintiff and exhibit 240 comprised a bundle of 66 publications tendered by the defendant.
The plaintiff's closing submissions referred to extracts from a number of the publications contained in exhibit 191 on the question of reasonable foreseeability. The publications were relied on to establish the state of medical and scientific knowledge about the risk of harm from exposure to asbestos dust and fibre at the time relevant to the questions of duty and breach. It was also submitted that the publications were or could have been accessed by the defendant and were relevant to establishing what the defendant knew or ought reasonably to have known about the relationship between exposure to asbestos and asbestos‑related diseases.
Exhibit 240 comprised publications that were said to have been referred to by the experts that the defendant called on the issue of causation. Senior counsel for the plaintiff indicated that he did not object to the tender of the articles 'as having been relied on but not as to their opinions' (ts 1133).
Evidence in the form of literature surveys was provided by Professor Musk, Dr Leigh and Mr Pickford. Those surveys were directed to the reasonable foreseeability of harm for the purpose of determining whether the defendant owed a duty of care and if so, whether it had breached that duty. They referred to a number (but not all) of the publications that were tendered, either separately or as part of exhibit 191. The surveys provided a brief summary of developments in medical and scientific knowledge about the relationship between asbestos exposure and disease, substantially by reference to what were apparently regarded by the experts as seminal research papers or epidemiological studies. Consequently, there was, to that extent, expert evidence that provided an explanation about the authority and effect of the publications that were referred to in the surveys.
There are obvious limitations on the use that can be made of a scientific publication without expert evidence directed to establishing the authority of the publication and explaining the methodology that has been employed, the meaning of the terms used and how the reported results are to be interpreted and applied to the issue to which the evidence is directed: and see Winmar v The State of Western Australia [2007] WASCA 244 [28] ‑ [29]. For example, Freckleton and Selby, Expert Evidence ‑ Law, Practice, Procedure and Advocacy (4th ed, 2009) identify four questions that must be considered in evaluating epidemiological evidence (at 1128 and following). A court has no real prospect of properly understanding and evaluating the evidentiary weight of an epidemiological study by reference to those and any other relevant questions concerning methodology and interpretation without the assistance of expert evidence on the study. In addition, there is the over‑riding question of the authority of the study: refer s 72 Evidence Act 1906 (WA). How is a court to form a view as to whether a publication is to be regarded as authoritative on a subject in the absence of expert evidence (at least where the authority of the work is not notorious)?
In the light of those considerations, I have almost entirely confined my review of the publications comprising exhibits 191 and 240 to those aspects that were expressly referred to or relied on by the parties' experts in expressing their opinions or which were cited by the parties in their closing submissions.
The plaintiff's submissions
The plaintiff provided 46 pages of written submissions in opening. His written closing submissions comprised 461 pages, divided between 406 pages of 'primary' closing submissions and 55 closely typed pages in response to the defendant's written submissions in closing. The parties provided, in addition, written submissions on some issues concerning the admissibility of documents, on two applications by the plaintiff to re‑open his case and on the effect of documents and statements that were tendered by consent following the completion of the trial.
It is not possible in these reasons to address each issue raised and every contention made in such lengthy submissions. The best that can be done is to identify in summary form the principal submissions made by the parties when introducing each major topic that is considered in the reasons. I shall refer to the plaintiff's primary submissions in closing as the 'plaintiff's closing submissions' and his responsive submissions in closing as the 'plaintiff's reply submissions'. The defendant provided one set of written submissions in closing.
The plaintiff's possible exposure to asbestos
The evidence suggested three ways in which the plaintiff might have been exposed to asbestos:
(a)The plaintiff's childhood visits to Castledare. The defendant accepted that the plaintiff had been taken by his parents to Castledare at a time when asbestos waste material was being dumped at that site or at a later time. However, it contended that it was unlikely that the plaintiff was exposed to asbestos dust and fibre during those visits having regard to where it says the waste material was dumped and the use that was made of the waste.
(b)Background exposure to respirable asbestos fibres while the plaintiff was growing up in Perth and possibly, in later life.
(c)Exposure while the plaintiff worked in the mining industry. The plaintiff was employed in the mining industry between 1989 and early 2009. He denied that he was exposed to asbestos during that time but the possibility that he may have worked at one or more mines where asbestos formed part of the local mineralisation was raised by the plaintiff's solicitors when instructing experts to provide an opinion on causation. There was only limited evidence as to the distribution of asbestos mineralisation in Western Australia and how that correlated with the mines at which the plaintiff had worked. That evidence is reviewed later in these reasons but it should be noted that those evidentiary difficulties led the defendant to submit in closing on the question of causation that, 'if it's a case at the border, then it [the possibility of mining exposure to asbestos] would be another factor that … could [be taken] into account in saying that the plaintiff just can't provide that degree of persuasion necessary' (ts 1262). The plaintiff contended that the defendant had failed to establish that he had been exposed to asbestos at any time during his employment in the mining industry.
There was a suggestion in the plaintiff's written opening that background exposure and risk could be ignored in this case as a specific exposure had been identified in the plaintiff's history. That suggestion obviously misconceived what is meant by background exposure and risk: and see Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158; (2007) 34 WAR 109 [21] ‑ [24] (Martin CJ). However, the plaintiff's case at trial was not conducted on the basis that his only possible exposure to asbestos was during his childhood visits to Castledare. Rather, the examination of the expert witnesses and the plaintiff's closing submissions accepted that the plaintiff would have been exposed to ambient asbestos at times during his life.
The plaintiff's visits to Castledare
The plaintiff's mother, Ms Lowes, gave uncontested evidence that 'on at least four occasions and probably more like six occasions' she and her husband took the plaintiff, with his sisters, to Castledare to ride on the miniature railway located in the grounds. She estimated that the visits occurred between about mid‑1972 and late 1973/early 1974 and that on each occasion they remained at Castledare for two to three hours: exhibit 4, par 3 and par 15.
Ms Lowes gave evidence as to why she recollected the trips. It is not necessary to recount that evidence as the defendant did not dispute her account of the visits (there was a suggestion in cross‑examination that Ms Lowes' recollection of when the visits occurred may have been inaccurate but senior counsel for the defendant accepted that the suggestion had been based on a misunderstanding of records obtained from Landgate; otherwise, the defendant merely noted that it was difficult to place a date on the visits given the passage of time ‑ defendant's closing submissions, par 118). I accept Ms Lowes' evidence and make findings in terms of the matters referred to in the previous paragraph.
Ms Lowes also gave evidence as to what occurred during the visits at Castledare. She said (exhibit 4, pars 5 ‑ 9):
[Simon] was a very energetic little boy, never wanting to sit still for more than a moment. He was always running about, playing in the garden, getting dirty. He was definitely a boy who liked to play outside and spend time outside. The trips to the railways were great because he could take a train ride which he loved and then play in the surrounds which was very interesting and fun for a boy of his age.
The railway was set on the river just beside the Castledare Boys Home. The railway snaked around in the trees which was great fun for Simon. We would have to wait in a queue for a while with Simon and Natalie before they could get on the train. Simon would run around in the area, playing with other kids, throwing things and so on before coming back to us just before it was time to get on the train.
It was also exciting for the kids because there was a river there and trees and piles of dirt and rubble which was spread around the place. Especially Simon, but also Natalie, would play in and around the area and get thoroughly covered in dust and dirt.
I remember that there was even white waste spread around in the area where we would wait to get on the train. This was the area where Simon was playing as we waited for the train ride.
I recall that the white waste - or whitish waste - was mostly very fine. There were clumps and bits and pieces in it, but there was a lot of very fine waste. Simon loved playing in it, climbing up and down the mounds and so on.
Ms Lowes also gave evidence that:
(a)Access to the miniature railway was gained by driving through the grounds of Castledare on a dirt road that was covered with 'some sort of white material' (exhibit 4, par 12).
(b)Parking was provided on a field beside the railway. The field was always dusty and located nearby were piles of 'white waste' that were dumped around the railway, including near the railway waiting area (exhibit 4, par 13). She estimated that the piles of waste were two to three feet high (ts 85).
(c)The children would 'disappear into an area that was full of the piles of white material'. There was a shop in the area where children would get on the train and which was beside the 'white road and piles of white waste' (exhibit 4, par 14). The children would get a white coloured dust on their clothes (ts 85).
Ms Lowes was not cross‑examined on that evidence except to suggest that the white waste material to which she referred may have been sand rather than asbestos waste. It will be necessary to return to this aspect of Ms Lowes' evidence in making findings about where the waste material may have been located within the grounds of Castledare. Putting aside that matter, I accept Ms Lowes' evidence as to what occurred during the visits to Castledare. In particular, I find that the plaintiff played in the grounds of Castledare during the visits, including on piles of whitish material and that, as a result, he became 'thoroughly covered in dust and dirt'. I also accept her evidence that there were areas with piles of white material present during the family's visits, including near the railway waiting area and the shop.
The dumping of waste material by the defendant at Castledare - introduction
The pleadings and the issues
The plaintiff alleged in the particulars to par 3 of the statement of claim that:
(a)the defendant dumped waste asbestos and waste asbestos cement in the grounds of Castledare from the early 1960s until about 1973;
(b)the waste was used for landfill in a swampy area, to cover roads in the area of the miniature railway and the tipping site and to build a base for the miniature railway line;
(c)the waste was dumped in heaps and then spread as fill, road cover or for use as a base for railway track.
Those allegations were not admitted by the defendant, except to say that it supplied asbestos cement waste to Castledare in 1971 and 1972 and that it understood that the waste was used by the Catholic Church for landfill in a swampy area. The defendant admitted in its written submissions in closing that it dumped asbestos cement waste at Castledare from early 1971 to, at the latest, February 1973 (par 63).
Nearly every aspect of the circumstances surrounding the dumping of waste material by the defendant at Castledare and the plaintiff's alleged exposure to asbestos dust during his childhood visits was contested notwithstanding the defendant's admissions. The issues and their significance were as follows:
(a)When was the waste material dumped? The primary significance of that issue was that there was evidence that the defendant used crocidolite in some of its manufacturing processes until the late 1960s. The plaintiff contended that it was likely that waste material containing crocidolite was dumped by the defendant at Castledare up to, at least, 1968. The defendant contended that it commenced dumping asbestos cement waste at Castledare in response to a request by an employee, Jeffrey Clifton (who was a member of the Castledare Miniature Railway Inc) made to the manager of its Welshpool factory after it had ceased using crocidolite at that factory. As previously noted, epidemiological studies have established that the risk of contracting mesothelioma is highest where there has been exposure to crocidolite. Further, the relationship between mesothelioma and exposure to crocidolite was recognised earlier than any possible connection with other types of asbestos. As the plaintiff's case developed at trial, the question of when the defendant commenced dumping asbestos waste at Castledare also had implications for the time at which duty and breach were to be assessed.
(b)What was dumped at Castledare? The question of what was dumped by the defendant at Castledare was not confined to the types of asbestos that might have comprised part of the waste material. The defendant maintained that the waste material consisted entirely of asbestos cement waste; the plaintiff suggested that the waste included raw asbestos fibre. The defendant submitted that it was less likely that asbestos fibres would be released into the atmosphere from asbestos cement waste as it contained asbestos bonded to cement and formed a concrete‑like material when combined with water. Asbestos waste and raw asbestos fibre, on the other hand, would be much more readily blown about by the wind and inhaled by anybody who resided at, or visited, Castledare.
(c)How was the waste material dumped? The plaintiff contended that the waste material was dumped in piles that formed mounds, the suggestion being that residents at the Boys Home and children visiting the grounds of Castledare could play on the mounds that were alleged to comprise asbestos dust and fibres and scraps from asbestos cement products. The mounds of waste were said to be an attraction for children and further, playing on the piles of asbestos dust constituted an episode of 'intense' exposure. The defendant, on the other hand, contended that the waste material was spread into and around the swamp area referred to in the pleadings after being dumped and that it solidified following contact with moisture in the area. There was also an issue as to whether the waste material ought to have been covered immediately on being dumped and if so, whether that had occurred.
(d)Where was the waste material dumped? The plaintiff contended that the waste material was to be found at a number of sites near and around the miniature railway and across the grounds of Castledare, the inference being that residents and visitors were readily exposed to asbestos dust and fibre. It was further said that the waste had been dumped in areas where children (residents and visitors) played. The defendant contended that the waste material was dumped away from the miniature railway and at a site that was not readily accessible to the public. It submitted that it was unlikely that the plaintiff had been exposed to asbestos dust and fibre during his visits to Castledare.
A further issue buried within those questions was whether waste material dumped by the defendant had been subsequently moved by, or under the supervision of the Christian Brothers at Castledare and if so, what implications that might have for the defendant's liability.
The available evidence
The evidence concerning the dumping of waste material at Castledare comprised:
(a)contemporaneous records maintained by the defendant;
(b)an affidavit made by Dr James McNulty sworn on 13 November 2009 (exhibit 242);
(c)evidence from Ms Lowes of what she observed on the occasions that she and her husband took the plaintiff to Castledare to ride on the miniature railway;
(d)evidence given by former residents or workers at, or visitors to, Castledare ‑ Christopher Wagland, Lance Tavani, Anthony Dalton, Norman Holmes and Gavin Waugh;
(e)evidence given by three former employees of the defendant ‑ Jim Polinelli, John Winters and Mr Clifton;
(f)a bundle of documents tendered by consent following the completion of the trial (document '689') and further statements provided by Mr Tavani and Mr Waugh that related to the matters referred to in the bundle.
Obviously, the witnesses who gave evidence were testifying about events that occurred between approximately 40 and 50 years ago (in the case of Mr Holmes). Memories are notoriously fallible and in the circumstances of this matter, I consider that there was a risk of unintended reconstruction (see, for instance, the comments of McLelland J in Watson v Foxman (1995) 49 NSWLR 315, 319). For example, childhood memories of seeing, playing in or moving piles of sand or other material at Castledare might readily and unintentionally be converted into specific recollections involving asbestos waste given the context in which the witnesses gave their evidence.
There were significant differences in the evidence about the dumping of waste material at Castledare. That was to be expected given the passage of time. For example, Mr Holmes indicated waste material was dumped at Castledare from at least 1963 (he indicated that the material had been dumped from before 1960 at one point in his cross‑examination). Mr Clifton, on the other hand, gave evidence that the defendant commenced dumping asbestos waste at Castledare almost a decade later in early 1971.
Each source of evidence concerning the dumping of asbestos waste at Castledare is separately considered in what follows. In doing so, it will be necessary to outline each witness's evidence in some detail to disentangle the conflicting strands. However, it will be helpful to first give a brief description of the miniature railway that was constructed at Castledare. The layout of the railway and the history of its construction provided important context within which to consider the evidence on the circumstances surrounding the dumping of the waste material by the defendant.
The evidence on the dumping of waste at Castledare
The Castledare miniature railway
Exhibit 1 comprised a booklet entitled, 'A Short History and Souvenir of the Railway', produced by the Castledare Miniature Railway Inc in 1977 (the Short History) and an enlargement of a map reproduced from the booklet (the map appeared at pages 12 ‑ 13 of the booklet). The map is reproduced as annexure A to these reasons. It was shown to various witnesses in an attempt to identify where waste material was located within the grounds of Castledare. It should be noted that the map had no scale. I visited the site of the railway with the consent of the parties in order to better appreciate the distances involved (the miniature railway is still operating at the site).
The publication of the booklet was relatively contemporaneous with the events about which the witnesses gave evidence. Accordingly, it was a valuable source of information against which to assess their recollections.
The booklet stated that:
(a)A track was first built in 1963 when 100 ft of track was laid. The railway was first operated publically at the Castledare Boys Home annual field day held in October 1963. The track was laid on timber sleepers 'which were placed upon sand spread out over the grass to fill the hollow spaces'. The booklet included a photograph taken in 1963 that depicted the original track under construction and being laid on what appears to be a sand base (photograph 1, page 4 and see photographs 1(a), 2, 3 and 5).
(b)Subsequently, an oval of track was constructed over 'Ferntree Bridge' along the bank of the Canning River to 'Penrhyn', swinging inland through 'Wormhill Tunnel' and back to 'Niana' (the railway station). The oval of track can be readily identified on the map annexed to these reasons; it encompasses the 'loco depot' and the members' car park. The Short History did not state when that oval of track was constructed. However, there were photographs in the booklet depicting the construction of this loop of track in 'about 1963/64' (photographs 5 and 6, pages 6 ‑ 7). The booklet described the next extension of track as having been commenced in 1967 and the sense of the chronology is that the original oval of track had been completed by that time. Mr Clifton stated that the original oval of track had been constructed when he first became involved with the Castledare Miniature Railway Inc in about 1966 (ts 959).
(c)The further extensions were commenced 'northwards during 1967, a further tunnel being constructed, the lake cleaned out and the engineering feature of the Railway, a bridge over the lake'. The bridge was said to be 95 ft long. That description identifies the extension as being the loop of track that passes through 'Hume Tunnel' and over '95 Stanbridge'.
(d)Further extensions south were commenced at Penrhyn during 1970 and 1971. They were described as extending to 'Canning Junction', curving away from the station and returning to Niana (the station apparently being a reference to a station at Canning Junction so that the southern extension seemingly incorporated the track passing through 'Fisherman's Bend' and 'Honiton Cutting' and returning to Canning Junction).
(e)One of the features marked on the map was known as 'Dick's Dyke', which it was suggested in the Short History might have been a 'monument to an intrepid member and lay Brother of the Home'. I infer that this was a reference to Brother Dick, the booklet continuing 'in addition to all the works he did, he was mainly responsible for the excavation of the pond and the building of the banks in this area, for in those days much of the area where the railway is built was a sea of reeds and swampland. Indeed as one traverses the railway towards the southern section, the passenger can see the type of country the railway commenced on'. The sense of this passage, read in the context of the historical section of the booklet, is that the reference to the 'pond' was to the 'lake' over which 'Stanbridge 95' was built. I further infer that the reference in this passage to the southern section of the railway was to the loops of track commencing at Penrhyn.
(f)The track base was 'mainly earth or limestone with rock ballast directly underneath the timber sleepers'. No reference was made to asbestos waste having been used for the track base (or for any other purpose connected with the construction of the railway).
(g)One reason given for choosing Castledare as the site for the railway was that the boys residing at the Home could participate in its construction.
The Short History was compiled by RA Barltrop. There was no indication about whether Mr Barltrop was involved in the construction of the miniature railway from its commencement and whether the events that he described were recorded from his own knowledge or were, at least in part, an account based on hearsay. The Short History was admitted into evidence without objection. The fact that it might contain hearsay is only relevant to weight: Heydon J D, Cross on Evidence (8th ed, 2010) [1650]; Walker v Walker (1937) 57 CLR 630. In those circumstances, it is not necessary to consider whether the booklet is a 'book' dealing with matters of 'public history' for the purpose of s 72 of Evidence Act (refer to Casley‑Smith v FS Evans & Sons Pty Ltd [No 4] (1988) 49 SASR 339 and Ling v McDonald [1988] Tas R (NC) N17).
The Short History was written at a time that was relatively contemporaneous with the events that it described. It was infused with an enthusiast's fascination with detail and I accept that it reliably recorded the history of the construction of the miniature railway. The accuracy of what was recorded in the document was not challenged by either party and there was no submission directed to the weight that might be given to the statements that it contained. I make findings according to the matters stated in the Short History that have been summarised in this section of the reasons.
The defendant's contemporaneous records
Minutes of the factory manager's conference June 1967
The plaintiff contended that the first reference in the defendant's discovered documents to the dumping of waste material at Castledare was in the minutes of a factory managers' conference held in June 1967 (exhibit 105). It is apparent from the minutes that the conference was a gathering of the managers of each factory then operated by the defendant in Australia. At page 24 of the minutes, under the heading 'Scrap Rivervale/Welshpool', it was stated that:
(a)At Rivervale, off-cuts from sheets and mouldings together with 'A.C. dust' (which I infer to be a reference to asbestos cement dust) were 'put over' the defendant's own dump each week. The material was dumped within a few yards of the despatch area of the factory.
(b)At Welshpool, 'all waste material including sludge leaves the factory by motor truck. It is disposed of either in a private dump or one belonging to the local Council'.
The plaintiff submitted that it should be inferred that the reference to a 'private dump' was to Castledare. Two reasons were given for why that inference should be drawn:
(a)the defendant had not led evidence as to the use of any other private dump 'during that period';
(b)Mr Clifton stated in cross‑examination that he was not aware of any other private dump being used.
The first of those reasons reflected a general submission made by the plaintiff about the defendant's approach to the questions of what was dumped at Castledare and when the dumping occurred. The submission was contained in the following passage in the plaintiff's closing submissions (section 7.1):
James Hardie's own documents prior to the 1970s were almost completely silent as to where it was disposing of the very significant amounts of asbestos waste being generated at its factories. Mr Pickford had seen the documents for dumping in the 1950s and 1960s but they were seemingly destroyed and no explanation was provided (Allen v Tobias (1958) 98 CLR 367).
This silence was matched by the failure of the defendant to call anyone involved in the disposal of its factory waste to say what arrangements it made for disposing of waste during the 1960s and 1970s …
The defendant did not produce a single truck driver or dispatch operator or housekeeping official or transport manager or manager or officer, to provide evidence as to when it started dumping waste at Castledare, despite knowing from the very start of this case that the plaintiff believed it started in the early 1960s … The defendant kept employee records and used them when it chose to (ex 129). It could have called drivers and other relevant employees who disposed of waste in the 1960s. It chose not to (Jones v Dunkel and Blatch v Archer). It could have called Mr Lawless (or his predecessor) who seemed to have visited Castledare in June 1972 as to what was occurring on the site after Mr Winters' earlier complaint (T 571.2).
In my view, the matters relied on by the plaintiff do not permit an inference to be drawn that the reference to a private dump in the minutes of the factory managers' conference was to Castledare.
The first reason advanced by the plaintiff for drawing the inference assumed that the reference to a private dump in the minutes so obviously counted against the defendant that the inference should be made in the absence of evidence in rebuttal (it was said in section 7.2 of the plaintiff's closing submissions that the conclusion that the document referred to the dumping of asbestos waste at Castledare was, 'in the light of the evidence and the failure of the defendant to offer any contradictory position, the only conclusion reasonably open'). However, in my view the mere reference to a private dump in the minutes was too vague to permit such an approach to fact finding on this issue. That was especially as:
(a)The minutes were of a conference held more than 40 years ago.
(b)The minutes made only one reference to a private dump and there was no other record created prior to 1971 that the plaintiff suggested referred (directly or inferentially) to waste being dumped at Castledare by the defendant.
(c)In a lengthy written opening, the plaintiff twice referred to the minutes but made no mention of the passage now being considered (see at par 56 where the minutes were referred to for different purposes). Senior counsel made no reference to the minutes in his oral opening. The written opening repeated the pleaded allegation that the defendant had dumped asbestos waste at Castledare from the early 1960s and contended that, as a consequence, the waste included crocidolite fibres. The possibility that the waste included crocidolite was an important aspect of the way the plaintiff presented his case. In those circumstances, why should an inference adverse to the defendant be drawn from its failure to adduce evidence to clarify a reference in a document when that reference was not considered to be sufficiently important to warrant mentioning in a detailed opening?
(d)The observation implicit in that rhetorical question was reinforced by the fact that the defendant had an apparently reasonable basis for denying that it had dumped asbestos waste at Castledare prior to 1971: the witness statement of Mr Clifton (which subsequently formed part of his evidence‑in‑chief). In this context, the question was not whether Mr Clifton's evidence should be accepted; the question was whether an inference should be drawn from the defendant's failure to lead evidence to explain a reference in a document that would be inconsistent with Mr Clifton's proposed evidence. It is difficult to see why the inference should be drawn when the defendant had apparently credible evidence suggesting that it was not required to provide any further clarification of an ambiguous reference in the document.
(e)Finally, in a section of the plaintiff's written submissions in opening headed, 'James Hardie's recorded knowledge of the Castledare asbestos dump' it was stated that 'the first references to Castledare in James Hardie's discovery appear in the minutes of the new James Hardie Environmental Committee which met for the first time on 22 January 1971' (par 71). That suggested that the submission that the reference to a private dump in the minutes of the factory manager's conference was to Castledare occurred to the plaintiff some time after the trial had commenced. Again, why should an adverse inference be drawn from the defendant's failure to adduce evidence on the reference in those circumstances?
The second reason given by the plaintiff for why it should be inferred that the reference to a private dump in the minutes of the June 1967 factory manager's conference was to Castledare was Mr Clifton's evidence that he was not aware of the defendant disposing of waste material on other private property (ts 963). The cross‑examination at this point appeared to be directed to establishing that the defendant also dumped waste material on private property apart from Castledare but in any event, Mr Clifton's evidence was confined to his recollection of what occurred during the time he was employed by the defendant (June 1968 to 1982; and see at ts 931). Further, his cross‑examination was intended to, and did, demonstrate that it was not part of his job to 'keep tabs on where the waste was going' (ts 964). Consequently, Mr Clifton's evidence did not support an inference that the defendant was disposing of waste material at Castledare prior to, and as at, June 1967.
There is a further reason for rejecting the submission that the reference in the minutes was to Castledare. As will become apparent, I have accepted Mr Clifton's evidence that the defendant commenced disposing of asbestos waste at Castledare some time after June 1968 as a result of a request that he made to the manager of the Welshpool factory.
Survey of industrial hygiene February 1971
The first contemporaneous record made by the defendant that expressly referred to the dumping of waste material at Castledare was not dated but was a report of a survey of industrial hygiene at the Welshpool and Rivervale factories undertaken in February 1971 (exhibit 66). The report was prepared by Mr Winters, who was described as an industrial hygiene engineer and who gave evidence at the trial.
The survey to which the report referred consisted of taking dust samples at various locations within the Welshpool and Rivervale factories to enable estimates of airborne asbestos fibre to be made. However, the report also included a section entitled, 'Test Recording Concentrations During Dumping of Dust'. Mr Winters conducted the tests that were referred to in this section of the report (exhibit 247, par 28). The section of the report was referred to on numerous occasions during the trial and accordingly, it is reproduced in full:
During the survey a test was also taken at the local orphanage, where asbestos dust is being used to fill swamp land and after covering with ashes a model railway is being built on this reclaimed ground.
Results of test were:-
a)During dumping (to windward) 280 f/cc
b)After dumping 0.37 f/cc
Although the after dumping figure is low, it could well rise if wind velocities increased.
If this method of dumping is to continue it is suggested that the load be dumped semi‑damp or if this is not possible dust should be watered down immediately when it is dumped.
However, I consider dumping of dust at the orphanage unwise. As our recent experience in NZ has shown, this could be an ideal target for a sensational news story, as the orphanage children visit this site each week‑end.
The significance of the comments that appeared after the test results is further considered in relation to the questions of duty and breach. For the present, the reference to children visiting the site each weekend should be noted (although, the document gave no indication of the source of Mr Winters' knowledge and he was not asked any questions about how he learnt of the matter).
Mr Winters' report was distributed within the defendant, accompanied by a memorandum from Dr McCullagh. Dr McCullagh signed the memorandum in his capacity as 'Medical Officer (Federal)'. A number of the documents tendered by the plaintiff concerning the defendant's knowledge of the harm caused by exposure to asbestos dust and fibres referred to or were created by Dr McCullagh. Brief details of his background, so far as can be gleaned from the tendered documents, are provided in the section of the reasons on reasonable foreseeability.
Dr McCullagh's memorandum (exhibit 67) included the following passage:
I note Mr Winters' remarks on the dumping of waste dust. I doubt that watering the asbestos, as Mr Winters suggests, is likely to be very helpful - if the place is really a swamp it would seem superfluous, if it is, in fact, dry the effects of watering down are likely to be only temporary. Much more important, I believe, is that dumped asbestos dust be immediately covered with the ashes that are used for this purpose. I doubt very much that the orphans are in any danger from the asbestos, though if there is available an alternative site, not inhabited by orphans, its use would obviate the risk of adverse press comment.
It appears that the testing at Castledare by Mr Winters reflected a decision made by the defendant's 'environmental control committee'. The committee was established at a conference of the defendant's factory managers held in 1970 (exhibit 156). It was decided at the inaugural meeting of the committee held on 22 January 1971 that waste asbestos dusts were to be monitored, the minutes of the meeting recording that 'it was agreed that this should be done - but with caution. Dr McCullagh will instruct Mr Winters accordingly' (exhibit 160). The minutes did not explain why caution was necessary.
Minutes of the environment control committee March 1971
The minutes of a meeting of the committee held on 29 March 1971 recorded the following (exhibit 160):
DUST CONTROL - Asbestos Waste Tips. Samples collected from a tip used in Perth have since been counted. The tip is in marshland in the grounds of an orphanage about half a mile from the orphanage building. The intention is to fill with hard clean waste, cover and, apparently, then build a model railway. Weather conditions at the time of sampling were unremarkable.
Downwind of the tip truck, during tipping, the count was 280 fcm-3. Walking over the area after tipping was finished the count was 0.37 fcm-3.
Mr Winters questioned the wisdom of tipping in the grounds of an orphanage and urged that more attention be given to the prompt covering of tipped asbestos waste.
On the face of it, the site appears acceptable but prompt covering is important.
It is apparent from the minutes that the committee had before it either Mr Winters' report of February 1971 (exhibit 66) or some record derived from it.
Inter-house letter March 1972
The dumping of asbestos waste by the defendant at Castledare was again referred to in an 'inter‑house' letter (a form of internal memorandum) dated 28 March 1972 from Dr McCullagh to various managers, including the chief executive officer (exhibit 68). The memorandum reported on a visit by Dr McCullagh to Western Australia. It included the following passage:
In Western Australia all asbestos bags are being dumped. As already noted some dust is collected and dumped in sealed plastic bags. Other dust is dumped on a swamp near an orphanage, wetted, covered with sawdust, wetted again and then covered with other waste.
The document did not disclose the source of Dr McCullagh's knowledge about what occurred at Castledare and there was no other evidence that assisted in identifying the source.
Waste asbestos tips survey June 1972
The final contemporaneous record made by the defendant that expressly referred to the dumping of asbestos waste at Castledare was a handwritten note made by Mr Winters, headed 'Waste Asbestos Tips' and dated 5 June 1972 (exhibit 70). The note recorded details about the disposal of waste from various factories operated by the defendant around Australia. It referred to the Rivervale and Welshpool factories and stated that waste was dumped at Castledare.
The information recorded in the note was provided by others to Mr Winters (ts 570 ‑ 571 and ts 577; and see the minutes of the environmental control committee for the meeting held on 8 June 1972 forming part of exhibit 160 and which indicated that the survey results were distributed and noted). Mr Winters did not perform the dust and fibre tests recorded in the document for Castledare.
Arguably, there was some ambiguity in the way in which the information concerning the Rivervale and Welshpool factories was recorded in the handwritten note; it might be read as indicating that waste from both the Rivervale and Welshpool factories was dumped at Castledare (see the cross‑examination of Mr Winters, ts 584). Mr Winters' ability to clarify the ambiguity was limited by the hearsay nature of his knowledge and the passage of time. However, he stated that the information recorded in the note did not refer to the disposal of waste from Rivervale despite the reference to that factory in the document. That was because the disposal of waste material generated at the Rivervale factory occurred at the factory (ts 582). There was other evidence which is referred to later in these reasons that corroborated Mr Winters' recollection in that regard and I have found that the Welshpool factory was the only source of the waste material deposited by the defendant at Castledare. Accordingly, I find that the note made by Mr Winters (exhibit 70) referred only to the disposal of waste from that factory.
The note recorded that the dust tested was 'pipe finishing dust' and that the fibre levels were 20.4 f/cc during dumping, 12.5 f/cc during spreading and 1.3 f/cc 10 minutes after dumping.
Two further aspects of the information recorded in the document should be noted:
(a)waste from asbestos pipes and flat sheets was dumped dry and then wetted but not covered;
(b)asbestos fibre was dumped in sealed bags or returned to part of the manufacturing process (and in a summary of the information recorded that appeared at the end of the document it was said that 'pure asbestos dust from asbestos treatment plants is returned to the mixing plant at all branches except Penrose and Welshpool pipe plant and these branches bag this dust in sealed plastic bags before being dumped').
Dr McNulty's evidence
Dr McNulty is a chest physician who was first employed by the Public Health Department in Western Australia in March 1957 as the medical superintendent of Kalgoorlie Hospital. He also held the position of the mines medical officer and in that capacity was responsible to the Minister of Mines under the Mines Regulation Act 1895 (WA) and the Mine Workers' Relief Act 1932 (WA). He held the position of medical superintendent and mines medical officer until 1963. Dr McNulty was subsequently a junior medical officer in the occupational and health unit of the Public Health Department between 1963 and 1972. He was made director of the unit and later, Deputy Commissioner of Public Health. Between 1975 and 1984, he was Commissioner of Public Health and between 1984 and 1987, the Executive Director of Public Health (see generally, exhibits 242 and 243).
Dr McNulty had no experience with the asbestos industry and asbestos‑related diseases prior to commencing employment with the Public Health Department. However, as medical superintendent of Kalgoorlie Hospital and mines medical officer, he became aware of the incidence of diseases such as asbestosis among workers at the Wittenoom asbestos mine. Further, he published an article in 1962 that reported on a case of pleural mesothelioma in a patient who had at one time worked at a blue asbestos mine in Western Australia (exhibit 191, tab 11). It was not in issue that the type of asbestos mined at Wittenoom was crocidolite (see exhibit 243).
Exhibit 242 was an affidavit sworn by Dr McNulty on 13 November 2009. The affidavit was made in connection with these proceedings. Regrettably, Dr McNulty now experiences health difficulties that prevented him from being able to give evidence at the trial (see exhibit 75). The plaintiff sought to tender Dr McNulty's affidavit, including the annexures, pursuant to s 79C of the Evidence Act. The defendant did not oppose the tender provided that it was permitted to tender:
(a)a proof of evidence of Dr McNulty that was prepared for and received as an exhibit in Misiani v Welshpool Engineering Pty Ltd [2003] WASC 263;
(b)a statement of evidence made by Dr McNulty that was prepared in connection with Nielsen v Seltsam Pty Ltd (a matter in the New South Wales Dust Diseases Tribunal (DDT) for which no judgment was published).
The plaintiff opposed the defendant's proposed tender of the proof and statement of evidence and indicated that he would seek to tender the transcript of Dr McNulty's oral evidence in Misiani if those documents were received.
Submissions on the proposed tender of Dr McNulty's affidavit and his other statements were received during and following the taking of evidence at the trial. I ruled that all of the documents should be received as exhibits and indicated that I would subsequently provide written reasons for those rulings; they appear at the end of these reasons.
Much of the affidavit sworn by Dr McNulty concerned a visit that he made to Castledare on 30 October 1972. He was accompanied by a Health Department inspector, Mr Moyle. The purpose of the visit was to investigate the disposal of asbestos waste by the defendant at Castledare (exhibit 242, par 20). Dr McNulty's professional experience was summarised earlier in the reasons because of the significance of his evidence about the visit.
Dr McNulty stated in his affidavit that he visited 'the James Hardie factory' on 25 October 1972. He made a file note of the visit, being attachment 3 to his affidavit (also separately, exhibit 220P). The file note did not identify the location of the factory but I infer that the visit was to the Welshpool factory. The reason for drawing that inference is that it was apparent from Dr McNulty's evidence that there was a connection between the visits to the 'James Hardie factory' and to Castledare.
Both Dr McNulty and Mr Moyle made file notes of their visit to Castledare (attachments 4 and 5 respectively to Dr McNulty's affidavit). Mr Moyle's file note stated that he and Dr McNulty were met by Brother Dick who 'showed us around'. The note then recorded that:
Loads of waste are dumped at the tip where landfill of low lying riverside land is taking place. It has also been used to build a track near the tip and to build a base for a miniature railway line. The railway is used at weekends by the boys and members of the public. Part of the asbestos waste is covered by a thin layer of loose sand while some is exposed to people on foot who would tend to scuff fibre to blow around in the wind. The area covered by sand could not be considered as satisfactory as it would be too easily moved by a combination of the elements and pedestrians.
The letter of 4 January 2010 from the plaintiff's solicitors stated that:
(a)The letter would be relied on in support of an application for indemnity costs if the defendant refused to admit that it was liable for the plaintiff's claim and the plaintiff succeeded on liability at the trial.
(b)The plaintiff's expert evidence had been served together with 'significant lay evidence'. The 'lay' evidence that had been served was not identified in the letter.
(c)The plaintiff's solicitors would provide the defendant with three further witness statements. The witnesses who had or were to make those statements were not identified. Rather, the letter merely asserted that:
…one witness, a student at Castledare, will say that he played with the dumped asbestos right up until he left school at the end of 1973; another student will detail how he was forced to spread the asbestos by the brothers at the school; the third witness, a former James Hardie employee, will say that he was aware that the asbestos was being dumped at Castledare and that one of the James Hardie staff was involved in the Castledare Miniature Railway.
The balance of the letter referred to documents that were said to demonstrate that the defendant knew or ought reasonably to have known of the risk of harm from exposure to the asbestos waste dumped at Castledare. The letter did not refer to when it was alleged that the asbestos waste had been dumped, the amount of waste that had been deposited or the composition of the waste. It also did not refer to the issues of causation raised by the plaintiff's claim.
The facsimile dated 28 January 2010 from the defendant's solicitors included the following statements:
We do not however agree with you that this matter is a straightforward claim in that it occurs in novel circumstances. Contrary to your assertion, the waste was laid at the request of the occupier of the premises, with the permission of relevant authorities, and in accordance with prevailing industry standards.
You will recognise that the concerns raised by Dr McNulty do not relate to the dumping, but rather to a later use which was beyond Amaca's control. We are sure you will acknowledge that the dangers associated with asbestos have been refined and have emerged over time.
There is then the issue of causation …
The defendant's submissions
Although it was for the plaintiff to establish that an indemnity costs order should be made, it is convenient to commence with the defendant's submissions on why it had acted reasonably in rejecting the Calderbank offer. The defendant identified seven matters that it contended were relevant:
(a)The circumstances surrounding the plaintiff's claim were unusual and, in some respects, novel;
(b)The claim was not straightforward as was demonstrated by the length of the plaintiff's submissions in closing and indeed, 'even a brief examination' of the submissions highlighted that the claim was unusual and novel;
(c)The complexity and novelty of the questions to be determined regarding the defendant's liability were demonstrated by the judgment;
(d)The plaintiff's case on liability was not settled at the time that he made his offer to compromise. It was found that 'key' witnesses relied on by the plaintiff were 'incorrect or confused about their observations' and it was only through the trial that the facts surrounding the plaintiff's claim were established. The defendant was entitled to test the evidence.
(e)Expert reports continued to be exchanged between the parties following the plaintiff's offer to compromise his claim. There was a clear conflict in the expert evidence and the defendant was entitled to test that evidence at trial.
(f)The evidence relied on by the plaintiff was not settled at the time of the Calderbank offer. The plaintiff was granted leave at trial to elicit further evidence from witnesses that he called.
(g)The plaintiff's case on damages had not settled at the time that the Calderbank offer was made. Evidence was led at trial extending the plaintiff's life expectancy and so increasing several aspects of his claim for damages.
Considerations relevant to the defendant's submissions
I considered that the following matters were relevant to the defendant's submissions and the plaintiff's application generally:
(a)Litigation over harm caused by exposure to asbestos fibres and dust generally raises difficult issues. Mesothelioma, in particular, has a long latency period so that the courts are required to determine allegations of duty and breach at a considerable distance from the relevant events and circumstances. That raises evidentiary questions concerning proof of the defendant's knowledge about the risks of exposure. Those questions are complicated by the variable relationships between the risk of harm and dose and the type of asbestos fibre implicated in the claimant's disease and by the fact that knowledge about those relationships was accumulated incrementally over time, commencing with the study published by Dr Wagner and his colleagues in 1960.
(b)The defendant and its advisors have, of course, acquired considerable knowledge and experience about those matters and the conduct of asbestos litigation generally. They are well placed to make the assessments required by a Calderbank offer. However, there were aspects of the plaintiff's claim in this matter that were novel or which, at least, in my view presented difficulties in assessing the prospects of success. In particular, much uncertainty surrounded the circumstances of the plaintiff's exposure to asbestos dust at Castledare. As was noted in the reasons, 'nearly every aspect of the circumstances surrounding the dumping of waste material by the defendant at Castledare and the plaintiff's alleged exposure to asbestos dust during his childhood visits was contested' notwithstanding that the defendant admitted that it dumped asbestos cement waste at Castledare between early 1971 and early 1973 [51]. At issue was the composition of the waste dumped at Castledare, how much waste material was deposited, where the waste material was dumped within the grounds of Castledare and when it was dumped. The answers to those questions were immediately relevant to determining the likelihood of the plaintiff establishing that the defendant owed a duty of care that had been breached and that the breach had caused or materially contributed to the development of his disease. Two matters were particularly significant:
(i)The plaintiff sought to establish that the defendant had dumped asbestos cement waste at Castledare much earlier than had been admitted. That was so as to prove that the asbestos cement waste contained crocidolite. The relationship between the risk of harm and exposure to crocidolite was much more extensively researched and better understood by the late 1960s than the risk of harm from exposure to other types of asbestos. The possibility that the defendant had dumped asbestos waste containing crocidolite fibres was also significant for establishing causation as it is the most lethal form of asbestos mineralisation.
(ii)The extent to which the plaintiff may have been exposed to asbestos dust when visiting Castledare was relevant to duty, breach and causation because of the relationship between dose and the risk of harm.
(c)The plaintiff referred at trial to two cases in which claims had been made for harm allegedly caused by childhood exposure to asbestos: CSR Ltd v Young (1998) Aust Torts Rep 81‑468 and Margereson v JW Roberts Ltd (1996) TLR 238 (17 April 1996). The facts of those cases were markedly different to the circumstances of this matter. I accept that the plaintiff's claim was novel in that it concerned exposure to asbestos waste dumped at a place to which visitors had intermittent access and which the plaintiff had only visited on four to six occasions.
(d)The evidence relied on by the plaintiff to establish the circumstances surrounding the dumping of asbestos waste by the defendant at Castledare was summarised at [53] of the reasons. I do not know the date on which the various witness statements referred to in that paragraph were served on the defendant. The letter of 4 January 2010 foreshadowed three further witness statements being provided to the defendant. I infer that the witnesses to which the letter referred were Mr Tavani (who attended Castledare for schooling in 1972 and 1973 and who stated in his witness statement (exhibit 22) that he recalled playing in asbestos waste); Mr Holmes (who gave evidence about being required to spread asbestos waste (exhibit 25)); and Mr Polinelli (who had been employed in the defendant's Rivervale and Welshpool factories and who referred in his witness statement (exhibit 8) to the disposal of waste at Castledare and to Mr Clifton having been involved with the miniature railway at Castledare). However, Mr Tavani's statement was dated 4 March 2010; Mr Polinelli's statement was dated 12 April 2010 and Mr Holmes' statement was dated 25 March 2010 ‑ that is, all of the statements were apparently made well after the date on which the Calderbank offer expired. It cannot be inferred that the statements were provided to the defendant prior to the expiry of the offer notwithstanding the statement made by the plaintiff's solicitors in their letter of 4 January 2010. Further:
(i)The statements of Mr Tavani and Mr Polinelli were not inconsistent with the defendant's admission about when it disposed of asbestos waste at Castledare.
(ii)Mr Holmes' statement suggested that construction of the miniature railway commenced in about 1961 and that asbestos waste had been used transported to Castledare from that time. That was much earlier than when the defendant admitted that the dumping of waste material had commenced and there were considerable differences between the evidence of Mr Holmes and Mr Clifton. Those differences were significant as, on Mr Holmes' account, the asbestos waste deposited at Castledare would inevitably have included crocidolite.
(iii)Mr Polinelli only stated in his witness statement that waste from the defendant's Welshpool factory was sent to Castledare and elsewhere. He briefly described the source of the waste but stated that he was not involved in organising or supervising the disposal of waste from the factory and gave no evidence about the volume of waste dumped at Castledare or where it was dumped within the grounds. He also did not give evidence about the type of asbestos fibre that would have been found in the waste.
(e)Only an affidavit made by Ms Lowes, which briefly described the plaintiff's childhood visits to Castledare, was dated as having been made prior to the Calderbank offer (exhibit 4). I infer from the admissions made by the defendant in its defence that its solicitors had interviewed Mr Clifton some time prior to the Calderbank offer even though his statement was dated 15 April 2010. No inference can be drawn as to when the defendant's advisors first conferred with Mr Winters.
(f)The plaintiff's solicitors also obtained Dr McNulty's affidavit in November 2009. I assume that it was served on the defendant prior to the Calderbank offer. Dr McNulty's affidavit and its annexures contained important evidence concerning how much asbestos waste had been dumped at Castledare and where it had been placed around the grounds. However, the statements made by Dr McNulty were consistent with the defendant's admissions about when it dumped asbestos waste at Castledare and provided no evidence suggesting that the waste contained crocidolite. Further, there were aspects of Dr McNulty's evidence that the defendant submitted reasonably supported its case.
(g)There were also documents discovered by the defendant that were relevant to establishing the circumstances surrounding the dumping of the asbestos cement waste at Castledare. However, I accept that, as at the date of the Calderbank offer and during the period that it remained open, aspects of the plaintiff's case on liability remained 'unsettled'. It was not clear at that time what the plaintiff would be able to establish about the composition of the waste that had been dumped, when the dumping had occurred, the volume of material that had been deposited and where it had dumped or dispersed within the grounds of Castledare. Those matters occupied a significant part of the trial as was evident from the reasons for decision. They were not matters about which the defendant could be said to have particular corporate knowledge given the length of time since the asbestos waste was dumped at Castledare.
(h)Medical knowledge of the pathogenesis of mesothelioma is imperfect. There have been significant differences in how courts have dealt with the uncertainty when determining causation. Those differences are reflected in decisions in this jurisdiction and issues concerning causation and asbestos related diseases have twice been recently considered by the High Court. In my view, the relevant legal principles could reasonably be regarded as contestable at the time of the Calderbank offer ‑ and subsequently - notwithstanding the decisions of the majority of the Court of Appeal in Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158; 34 WAR 109 and The State of South Australia v Ellis [2008] WASCA 200; 37 WAR 1. The decision of the High Court in Ellis was not delivered until 3 March 2010 (Amaca Pty Ltd v Ellis [2010] HCA 5; 240 CLR 111).
(i)The plaintiff had obtained a report from Dr Leigh and some reports by Professor Musk (letters dated 13 June, 20 July and 19 August 2009) prior to the Calderbank offer. I also assume that the substance of evidence to be given by Professor Musk (exhibit 35) was the substance of evidence referred to in the correspondence from the plaintiff's solicitors that was exchanged around the time of the Calderbank offer. However, Professor Robinson's report was not provided until early April 2010. Professor Musk's reports expressed a conclusion on causation but provided no explanation for that conclusion.
(j)The defendant obtained Professor Berry's report on the day after the Calderbank offer closed and Dr Gardiner's report one day later. It had received Mr Pickford's report prior to the Calderbank offer being made and Professor Fox's report was dated 5 February 2010. I assume that the defendant's advisors were aware of the opinions likely to be expressed by Professor Berry and Dr Gardiner by the time that the Calderbank offer expired; alternatively, I accept the plaintiff's submission that a request could have been made for the period of the offer to be extended to enable their reports to be received given that the reports must have been close to completion by 10 February 2010.
(k)There were significant differences between the experts over whether the plaintiff's exposure to asbestos cement waste during his childhood visits to Castledare caused or materially contributed to the development of his disease. Those differences reflected, at least in part, different theories about the pathogenesis of mesothelioma. As I endeavoured to explain in the reasons at [617] and following, the medical controversies surrounding mesothelioma have directly impacted on the legal principles to be applied in determining causation. Obviously, the defendant was well aware of those controversies and the related legal issues at the time that the plaintiff made his Calderbank offer. It was clear from the trial and the relevant case law that the defendant and its advisors were familiar with the opinions of Dr Leigh, Professor Robinson and Professor Musk and that they well understood the differences between Dr Leigh, Professor Fox and Dr Gardiner.
(l)However, as was noted earlier, the relevant legal principles for determining causation were ‑ and remain ‑ contestable; see for example the basis upon which the applicant sought special leave in Amaca Pty Ltd (under NSW administered winding up) v Booth & Anor [2011] HCA Trans 152 (10 June 2011) and Stapleton J, 'Actual Causation In Asbestos Cancers' (2010) 126 LQR 351 referred to in the reasons at [618]. In my view, the defendant was reasonably entitled to have regard to the possibility that the legal principles to be applied in determining causation might be further clarified on appeal in a way that was favourable to its case even if it failed on that issue at first instance.
(m)The findings on dose and fibre type were significant for causation. Those findings depended on the evidence relating to when the asbestos waste was dumped at Castledare and the circumstances of the plaintiff's exposures.
(n)Peritoneal mesothelioma is a less common disease than pleural mesothelioma. That had implications for the issues of duty, breach and causation. For example, less was known about the relationship between exposure to asbestos fibres and the development of peritoneal mesothelioma at the time that the defendant disposed of asbestos waste at Castledare and it appeared that the epidemiological evidence relating to peritoneal mesothelioma was less well defined.
(o)The plaintiff's solicitors had raised with Professor Musk the possibility that the plaintiff had been exposed to asbestos while working in the mining industry by the time that the Calderbank offer was made. However, the evidence on the plaintiff's possible exposure was limited. As at February 2010, the defendant had been provided with the first of the plaintiff's two witness statements (exhibit 2). That set out the plaintiff's employment history, including the various mines at which he had worked. The plaintiff indicated that the work at those mines was very dusty but there was no express reference to possible exposure to asbestos. The possibility that the plaintiff had been exposed to asbestos fibre while working in the mining industry was a factor that the defendant was reasonably entitled to take into account in considering the prospects of success. Professor Fox and Dr Gardiner expressed opinions on that possibility that were favourable to the defendant's case.
(p)Two expert reports that were relevant to the assessment of the plaintiff's damages were dated at about the time of the Calderbank offer: Ms Nestler's report (exhibit 194) was dated 7 February 2010 and Ms Pass's report (exhibit 195) was dated 14 February 2010. I do not know when Ms Nestler's report was served on the defendant. However, I accept that the defendant had sufficient information concerning the plaintiff's circumstances to form a view about the likely award of damages if his claim succeeded for the purpose of assessing the Calderbank offer.
The plaintiff's contentions
The plaintiff contended that:
(a)The Calderbank offer represented a 'discount' of approximately 20% on the damages awarded following trial.
(b)The defendant apparently considered that it was in a position to assess the prospects of success prior to the Calderbank offer being made as it made an offer in December 2009. Further, the defendant's subsequent offer in March 2010 indicated that the defendant was confident of its position and considered that there was little risk of it being found liable to the plaintiff. There were a number of matters denied in its defence that the defendant either abandoned or failed to establish at trial (the matters were listed at par 34 of the plaintiff's submissions). The defendant acted unreasonably in denying many of the matters alleged in the statement of claim and its assessment of the prospects of success was also unreasonable.
(c)The defendant's solicitors had stated in their facsimile of 28 January 2010 that the defendant had deposited asbestos waste at Castledare with the permission of 'relevant authorities'. However, no evidence to that effect was adduced at trial and the statement was 'without foundation and entirely unreasonable' (plaintiff's submissions, par 41). Similarly, the facsimile had stated that the waste material had been disposed of according to prevailing industry standards. However, the defendant ought to have known that the dumping of the waste material was contrary to industry, government and health authority standards and its own policies. It was found at trial that the disposal of the waste material at Castledare was contrary to 'existing policies'.
(d)A number of other aspects of the defendant's case were also 'unreasonable':
(i)the interpretation of the concerns expressed by Dr McNulty in the contemporaneous documents attached to his affidavit;
(ii)the defendant’s position on causation ‑ 'the defendant has produced no evidence to sustain a reasonable basis for a well founded belief that it would succeed on this issue, and its rejection of the plaintiff's Calderbank offer, insofar as it was based on its consideration of its causation position, was unreasonable' (par 67) and 'moreover, it cannot be said that the defendant's position was so objectively strong that it was entitled to a verdict on the question to vindicate its position, and that this might be a reason for its refusal of a reasonable compromise offered by the plaintiff' (par 68);
(iii)the defendant's 'position that [the plaintiff] had developed mesothelioma as a result of exposures in the mining industry was completely unreasonable in the absence of any evidence that [the plaintiff] was so exposed' (par 69);
(iv)the defendant had 'no basis for confidence in its position on either duty of care or foreseeability' (par 72).
The plaintiff also made lengthy submissions that were critical of Mr Pickford's report and the defendant's reliance on his report. The submissions reflected, in part, criticisms made of Mr Pickford's evidence at trial and, in part, findings that were made about his evidence (see at [743] and following). It was said that the 'shortcomings' in Mr Pickford's report should have been known to the defendant.
Finally, the plaintiff submitted that, 'rejecting [the] Calderbank offer was unreasonable in light of the defendant's past experience of asbestos litigation, and in light of its awareness of other decisions in Australian courts concerning asbestos matters' (par 75).
Considerations relevant to the plaintiff's contentions
In my view:
(a)The time that the offer was open for acceptance and the clarity with which it was expressed provided the defendant with a reasonable opportunity to consider the proposed compromise.
(b)The nature and complexity of the issues raised by the plaintiff's claim were such that it could not be said that the defendant had acted unreasonably merely by rejecting an offer that was approximately 20% less than the damages awarded following the trial.
(c)It was not entirely clear what the defendant had in mind when it stated that the asbestos waste had been disposed of with the permission of the relevant authorities. As to the reference in the defendant's facsimile of 28 June 2010 to various standards, there were regulations and industry codes that sought to specify exposure levels for workers in the asbestos industry and for persons who worked with asbestos products and there were also guidelines by the late 1960s for disposing of asbestos waste. The defendant argued that the plaintiff's exposure to asbestos fibre and dust at Castledare was less than the levels prescribed by the regulations and codes. It also contended that, on the basis of the evidence of Mr Clifton and Mr Winters, the waste was dumped in a swamp area where it hardened. It was open to submit that disposal of the waste in that way was not a significant departure from industry guidelines ‑ dumping the waste in the swamp area in the manner described by Mr Clifton in his witness statement might be regarded as similar to covering the waste. Further:
(i)Much of the plaintiff's proposed evidence on the dumping of the asbestos waste at Castledare was served after the Calderbank offer was made.
(ii)There was no evidence as to when the defendant learnt that Dr McNulty was not able to attend the trial. I am unable to conclude that it knew at the time of the offer that Dr McNulty would not be available to be cross‑examined on his evidence. Exhibit 75, which was a letter from Dr McNulty's consulting physician, was dated 14 April 2010. Dr McNulty's affidavit had been made approximately 10 weeks before the Calderbank offer.
(d)The defendant's position on causation was reasonable for the reasons that have already been mentioned. Similarly, it was reasonable for the defendant to have regard to the possibility that the plaintiff may have been exposed to asbestos while working in the mining industry. It was, perhaps, surprising that the defendant had not made more extensive enquiries in an attempt to establish the precise location of the mines at which the plaintiff had worked in relation to the known location of asbestos mineralisation in the Pilbara and the Goldfields. However, the issue had been raised by the plaintiff's solicitors in correspondence with Professor Musk. Further, the reasonableness or otherwise of the defendant's decision to refuse to accept the Calderbank offer cannot turn on one forensic aspect of the case given the complexity and nature of the issues that were raised by the plaintiff's claim.
(e)The matters that the plaintiff contended that the defendant had unreasonably denied and which had provided no reasonable basis for assessing the prospects of successfully defending the action (the matters identified at par 34 of the plaintiff's submissions) were extracted from allegations made in the particulars to par 2 of the statement of claim and in par 6. Some of the matters to which the plaintiff referred in his submissions concerned allegations about the defendant's knowledge of the risks of harm from exposure to asbestos. The difficulty with the pleading of those allegations was that no time was specified at or by which defendant was alleged to have known of the various matters pleaded (see par 6 of the statement of claim). It was, accordingly, reasonable to deny the allegations that were made; as was explained in the reasons for decision, knowledge about the risks of harm from inhaling asbestos was acquired over time. Further, a party is strictly not required to plead to particulars. The defendant's position on what was admitted about the actual dumping of the waste material at Castledare was made clear prior to the trial by the witness statements of Mr Clifton and Mr Winters. Its position on that matter was not, in my view, unreasonable.
Conclusion on the defendant's refusal to accept the Calderbank offer
As the Court of Appeal noted in Lo Presti, the question of whether the defendant unreasonably rejected the plaintiff's Calderbank offer involves matters of impression and judgment. In my view, it was not unreasonable for the defendant to have rejected the offer having regard to the amount of the offer and the various considerations that have been identified above as relevant to the parties' contentions. Those considerations shaped the impression that I formed.
In particular, I do not consider that it could be inferred that the defendant had adopted an unreasonable view of its prospects of successfully defending the plaintiff's claim in rejecting the Calderbank offer. The course of the trial, the parties' submissions in closing and the reasons that were delivered indicate that there were numerous issues raised by the claim that would have been difficult to assess at the time of the offer. It was not surprising that both parties made allegations that were not established by the evidence adduced at the trial given that the relevant events occurred in the late 1960s/early 1970s. As has been noted, the plaintiff, for example, endeavoured unsuccessfully to prove that the defendant had dumped asbestos waste at Castledare much earlier than it admitted.
There was no evidence about when the plaintiff's solicitors served the witness statements of Mr Tavani, Mr Wagland, Mr Holmes and Mr Dalton. However, I consider that it would have been reasonable for the defendant to have rejected the plaintiff's Calderbank offer even if a draft of their statements or the substance of their evidence had been provided to the defendant prior to the offer. I formed that view having regard to the contents of the statements, the evidence proposed to be given by Mr Clifton, the time that had passed since the events about which they were to give evidence and the nature of the issues to be determined in the plaintiff's claim.
Similarly, I do not consider that the defendant’s position on causation could be characterised as unreasonable having regard to the expert evidence that had been served by the time of the Calderbank offer, the fact that the plaintiff has peritoneal mesothelioma, the imperfect state of medical knowledge on the pathogenesis of mesothelioma and the differences in the case law on the principles to be applied to determine causation.
The other grounds for seeking an indemnity costs order
The plaintiff further contended that the defendant's conduct of the litigation was improper or unreasonable according to the test identified by Pullin J in Flotilla Nominees:
(a)The defendant had withheld 'key' documents from Mr Pickford ‑ dust counts that had been taken by an employee of the defendant (exhibit 66) and dust samples recorded in a bundle of documents discovered by the defendant (exhibit 69). The other 'shortcomings' in Mr Pickford's report were such that the report 'should not have been provided to the court given the defendant's decision to withhold documents and the other errors and unfounded assumptions' (par 93(a)).
(b)The defendant sought 'to incriminate alleged mining exposure for the plaintiff's mesothelioma despite having no evidence of such exposure and despite its expert Mr Pickford ‑ on whose report it relied ‑ having concluded the mining exposure was less than one‑third the Castledare exposure and hence meaningless' (par 93(b)). It did not draw Mr Pickford's conclusion to the attention of Dr Gardiner or Professor Fox (par 93(b)).
(c)The defendant did not provide Professor Berry's report to Professor Fox and Dr Gardiner 'despite knowing of the problems of Mr Pickford's report' (par 93(c)).
(d)The defendant failed to discover the documents that resulted in the applications that were made to reopen the plaintiff's case (par 93(d)).
(e)The defendant 'asserted' many matters in its defence that could not be sustained (pars 93(e)).
In my view, those matters do not establish that the defendant conducted the litigation in a way that requires the court to express its disapproval whether they are considered separately or together:
(a)It was not apparent why Mr Pickford was not provided with the dust sample records forming exhibits 66 and 69 as part of his instructions. However, the documents had been discovered. It was not alleged that the defendant's solicitors deliberately withheld the documents in instructing Mr Pickford and I do not consider that such an allegation could have been properly made.
(b)Mr Pickford made significant concessions in cross‑examination and it was found that there was force in the criticisms of his evidence offered by Dr Leigh and submitted by the plaintiff in closing: [747] ‑ [749]. However, in my view the criticisms were not of a kind or severity that required the court's sanction and an order for indemnity costs would have been disproportionate.
(c)Dr Gardiner and Professor Fox accepted Mr Pickford's estimates of the plaintiff's exposure to respirable asbestos fibres during his visits to Castledare. They disclaimed the expertise required to assess the validity of Mr Pickford's estimates. However, I do not consider that the defendant's solicitors were obliged to draw any particular conclusion or opinion expressed by Mr Pickford to the attention of Dr Gardiner or Professor Fox. They were briefed with his report. It was for them to draw whatever information from the report that they considered relevant and that they could derive according to their expertise and to apply that information in whatever way that they regarded as being appropriate consistent with their expertise.
(d)There were differences between the opinions expressed by Mr Pickford and Professor Berry. Professor Berry, Dr Gardiner and Professor Fox were instructed by the defendant's solicitors at about the same time (see exhibits 62, 78 and 117). It might have been desirable to refer Professor Berry's report to Dr Gardiner and Professor Fox for further comment. However, I do not consider that the failure to provide to do so could be described as unreasonable or improper so as to require the court to mark its disapproval according to the principle identified by Pullin J in Flotilla. It is relevant to note that Dr Gardiner and Professor Fox were not cross-examined on Professor Berry's report.
(e)The documents that the plaintiff contended ought to have been discovered concerned a donation made by the defendant to the Castledare Miniature Railway Inc in 1999 to assist with the rehabilitation of the site of the railway. The documents were discovered by the defendant after the first application by the plaintiff to reopen his case. It was noted in the reasons that it was a moot point whether the documents ought to have discovered on the Peruvian Guano test but (at [899]):
(i)the documents themselves did not contain an admission and were not relevant given that the donation was made many years after the events relevant to the plaintiff's claim;
(ii)the evidential value of the Richard Noble reports and related documents ‑ documents which the plaintiff argued would have been uncovered had the defendant discovered the documents relating to the donation ‑ was slight.
In my view, it cannot be said that the failure to discover the documents relating to the donation was unreasonable or improper.
(f)The matters that were said to have been 'asserted' by the defendant were, in fact, the matters that were denied by the defendant in its defence and which were referred to in par 34 of the plaintiff's submissions. Obviously, there is a difference between an assertion and a denial. In any event, the defendant did not unreasonably deny matters by its defence for the reasons that have been explained on why it did not unreasonably reject the plaintiff's Calderbank offer.
The application to 'correct' the judgment
It was found that the plaintiff's life expectancy was two years from the completion of the trial in June 2010 [843]. It was further found that the plaintiff would require care during that period [869]. Future care was assessed according to a report by a nursing consultant, Ms Nestler. Ms Nestler's report, dated February 2010, was tendered by consent (exhibit 194).
Findings on the assessment of the cost of providing future care for the plaintiff according to Ms Nestler's report were made at [869] of the reasons for decision. Some aspects of Ms Neslter's assessment of the plaintiff's future requirements for care were not accepted. However, her estimates of the costs of providing care were accepted.
The plaintiff identified three matters in the assessment of his loss for the cost of future care which he contended did not reflect the findings that had been made according to Ms Nestler's report. The matters concerned the calculations appearing at [869] and [870] of the reasons. The defendant did not dispute that the judgment could be corrected if the calculations that appeared in those paragraphs contained unintended errors or omissions of the kind that may be corrected by the 'slip rule'.
I accept that the calculations that the plaintiff has identified contained errors that were unintended and that they arise from accidental slips or omissions within the meaning and for the purpose of O 21 r 10 of the Rules of the Supreme Court:
(a)Ms Nestler referred to months in the body of her report. However, the schedules to her report used weeks. The intention was to replicate the approach taken in the schedules rather than to approximate the loss by adopting four weeks for each month. It was intended by that means to ensure that the plaintiff was compensated as completely as possible for the two year period of his estimated life expectancy rather than to approximate the loss. Accordingly, the judgment ought to have referred in par [869(b)] to an amount of $31,712 rather than $29,273.
(b)An amount was inadvertently omitted from the calculation appearing in par [869(c)] for the first nine month period of future care. The relevant passage of the judgment should have read: '[a]ccordingly, the amount assessed for these periods is $34,944 (being eight hours x $40 per hour x 39 weeks and $576 per week (see exhibit 194, schedule 1) x 39 weeks).
(c)A period of approximately eleven weeks was inadvertently omitted from the calculations as a result of disallowing an aspect of Ms Nestler's assessment [869(b)]. Consistent with the reasons in [869(c)], that period should have been split between the period for which eight hours per week care had been allowed and the period for which a higher level of care had been allowed. The relevant calculation is eight hours per week x $40 per hour x 6 weeks for the first period and $576 per week x 5 weeks for the second period. The resulting amount is $4,800.
The effect of those errors is that the amount stated as assessed for future care in [870] and [871] ought to have been $85,184 ($13,728 + $31,712 + $34,944 + $4,800) and the total damages stated in [871] as having been assessed should have been $2,089,843.93. The judgment should be amended to record that the judgment sum is $2,089,843.93.
The costs of the application to reopen the plaintiff's case
The plaintiff's applications to reopen his case were dismissed. The reasons why the applications were refused appear at [882] of the reasons for decision and following.
The plaintiff contended that the defendant should pay the costs of the applications notwithstanding that they were dismissed as:
(a)The defendant ought to have accepted his Calderbank offer. The applications and the trial would have been unnecessary had it accepted the offer.
(b)The documents relating to the donation made by the defendant to the Castledare Miniature Railway Inc ought to have been discovered. The documents would have disclosed that asbestos waste had been removed from the grounds at Castledare. That would have led the plaintiff's solicitors to discover the existence of the Richard Noble reports and documents related to those reports.
It has been found that the defendant's rejection of the plaintiff's Calderbank offer was reasonable. Consequently, it is only the second of those reasons that could provide a basis for ordering that the defendant pay the costs of the applications to reopen.
It is fundamental to the proper administration of justice that parties conscientiously discharge their obligations of disclosure in court proceedings. A party that fails to discover relevant documents will ordinarily be required to pay the costs of any resulting application. However, I consider that costs should follow the event in this instance having regard to the reasons for why the applications to reopen were refused. I have also taken into account the following matters in reaching that conclusion:
(a)I accept that the documents were discoverable on the extended Peruvian Guano test. Although the documents would have revealed a train of enquiry, they were at the periphery of what was discoverable. It was not suggested that the defendant deliberately withheld discovery of the documents. That suggestion could not be made having regard to the content of the documents and the nature and magnitude of this matter.
(b)The plaintiff's solicitors had, in fact, pursued the train of enquiry that it was submitted they would have pursued had the documents been discovered. The fact that they did not ascertain prior to the trial that asbestos had been removed from the grounds of Castledare was not due to the failure by the defendant to discover documents. At most, the plaintiff's solicitors might have been more confident that remedial work had been performed when making their enquiries had they been armed with the documents relating to the donation made by the defendant.
(c)The Richard Noble reports and the related documents would have been relevant to the plaintiff's allegation that the asbestos waste was dispersed more widely across the grounds of Castledare than was suggested by Mr Clifton. However, the reports raised several evidentiary issues, their relevance was limited and the main point that emerged from the reports was that there was no crocidolite in the samples that had been taken and analysed (a matter that was contrary to the plaintiff's case).
Key Legal Topics
Areas of Law
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Tort Law
Legal Concepts
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Negligence
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Duty of Care
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Causation
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Breach of Contract
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Material Contribution
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