Macleay-Hastings Health Service v Wallaby Grip (BAE) Pty Ltd (In Liq)

[1999] HCATrans 402

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S31 of 1999

B e t w e e n -

MACLEAY-HASTINGS AREA HEALTH SERVICE

Applicant

and

WALLABY GRIP (BAE) PTY LTD (In Liquidation)

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 NOVEMBER 1999, AT 12.09 PM

Copyright in the High Court of Australia

MR J.D. HISLOP, QC:   May it please the Court, I appear with my learned friend, MR G.J. PARKER, for the applicant.  (instructed by P.W. Turk & Associates)

MR C.G. GEE, QC:   May it please your Honours, I appear with my learned friend, MR A.J. McINERNEY, for the respondent.  (instructed by Middletons Moore & Bevins)

GAUDRON J:   Yes, Mr Hislop.

MR HISLOP:   Your Honours, this is a case where it is submitted there should be a grant of special leave because of general or public importance of the issues, and there are two issues.  The first is whether causation is established upon proof of a material increase in the risk of injury resulting from a wrongful act or omission, to put it shortly.  The second is the extent to which a specialised tribunal, such as the Dust Diseases Tribunal, may rely upon its knowledge and expertise as to medical matters.

GAUDRON J:   Well, the first point seeks to proceed on the basis of the findings made by the Court of Appeal, does it?

MR HISLOP:   Essentially, yes.

GAUDRON J:   Yes.  Well, why would simply materially contributing to the risk constitute causation?

MR HISLOP:   In our submission the authorities have developed in such a way in Chappel v Hart that when one has a wrongful act or omission which materially increases the risk of injury and that injury occurs in circumstances such as we have here, namely that it is impossible in the state of medical knowledge to know precisely which exposure caused the situation or whether materially contributed against a factual finding that the greater the dose of asbestos the greater the likelihood of suffering the condition of mesothelioma arises.  We say in those circumstances a material increase in this is sufficient to establish causation, and that such an approach is consistent with the approach taken by this Court in Chappel v Hart and Naxakis, or at least some of the Judges ‑ ‑ ‑

GAUDRON J:   Was that argument put below?

MR HISLOP:   At first instance, no, it was not.  It was certainly an approach which was taken in the Court of Appeal because the court there determined that that was not the approach to take, favouring the Bendix Mintex approach and not the decision taken by Mr Justice Stein in that case, which was a decision by Mr Justice Stein along the lines which we advocate here.  So, it was certainly a matter which was live in the Court of Appeal.

GAUDRON J:   Yes.

MR HISLOP:   So that, essentially, we say that it is a matter where special leave should be granted because in this case the Court of Appeal preferred the Bendix Mintex approach, or the approach of the majority in that case, which was contrary to decisions ‑ ‑ ‑

GAUDRON J:   But is not the difficulty you have with that argument in this case that the Court of Appeal did not accept that the cumulative exposure was the cause of the disease?

MR HISLOP:   We would submit not, your Honour.  The proper approach in the state of the current law is that one looks to determine whether the risk has been materially increased ‑ ‑ ‑

GAUDRON J:   But there is no doubt that if it were cumulative exposure that were the cause there would be no difficulty with that proposition, would there.  But, the Court of Appeal did not accept that cumulative exposure was the cause, did it?  It proceeded on the basis, really, that there was one incident, one fibre?

MR HISLOP:   No, with respect, your Honour.  The court did accept that it was known that increased exposure increased the risk of contracting the disease.  What essentially one had was, as against the employer, a continuum of exposure and with ultimately a risk which was realised.  In our submission, that is sufficient to establish causation in, at least, a prima facie sense, so that the onus, probably the evidential onus, would then revert to, in this case, the supplier.

GAUDRON J:   Your difficulty, I would have thought, Mr Hislop, is what the President said in Walsh with relation to the evidence, which I take it was the same in each case.

MR HISLOP:   Not precisely, but it was similar.

GAUDRON J:   Yes.

MR HISLOP:   There was evidence in this case which was that at page 20 of the papers, quoting from Dr Joseph:

“[mesothelioma] is cumulative in that the longer the exposure and the heavier the exposure the greater the dose of asbestos which enters the lung and therefore the greater the chance of fibres getting into the periphery of the lung –

HAYNE J:   He finished, “in a sense it is cumulative”.

MR HISLOP:   Yes.  At page 5 at first instance, where there is some further evidence of Dr Joseph, again he says at line 40:

loosely dose related, that the heavier the exposure to asbestos the more likely it was that a patient would develop mesothelioma…..on the balance of probabilities that all exposure to Mr Phillips had materially contributed to his mesothelioma.

And the doctor said:

Yes.  I would say that total exposure has been the cause and I wouldn’t be prepared to try to differentiate any one period from another period.

GAUDRON J:   Yes; but that is the finding, is it not, or that piece of evidence, according to Justice Beazley was taken out of context.

MR HISLOP:   No, your Honour, what her Honour thought was taken out of context was an approach taken by the trial judge basing himself upon his knowledge as a specialised tribunal, and which her Honour considered did not square with the evidence of Dr Joseph.  What his Honour had to say in that regard is at page 8.

GAUDRON J:   Which, on one view, read quickly, equates with the evidence of Dr Joseph at page 5.

MR HISLOP:   Yes.

GAUDRON J:   But in the Court of Appeal the view was taken that you had to look at more than that particular statement from Dr Joseph.

MR HISLOP:   Yes, but the difference is that the judge is drawing on his knowledge as a specialised tribunal.  He is going beyond the evidence in the case.  It is not correct to limit him to the precise evidence there, because what he was saying was, “Based upon the specialised knowledge that we have as a tribunal I believe certain things follow”.  That is our second ground, of course, that we say as a specialised tribunal, the judge was allowed to do that, and that the Court of Appeal was wrong when her Honour said that his knowledge as a specialist tribunal did not extend to applying the members’ own views of the aetiology of the disease which is not supported by the evidence.

GAUDRON J:   Where is this evidence?  You see, once you get to the second point your problem, it seems to me, is this is not evidence that was given orally.  It is evidence that is accumulated piecemeal from different cases. 

MR HISLOP:   That is the specialised knowledge of the tribunal.  There are really two aspects to it.  One is the first, that the evidence is before the court pursuant to section 25(3) which is the evidence of Dr Joseph taken from other cases.

GAUDRON J:   Yes.

MR HISLOP:   That goes in a documentary form.  But we say over and above that there is a knowledge that the tribunal has gleaned, as a specialised tribunal, which it can bring to bear as well.  We say it is a cumulative thing and that ‑ ‑ ‑

GAUDRON J:   What does the Act say in that regard?

MR HISLOP:   As to section 25(3)?  It simply permits the material to be put before the tribunal subject to leave being granted.  It has a further provision to which I draw the attention of the Court and that is section 25B which was not in force at the time of these proceedings, which permits:

Issues of a general nature determined in proceedings before the Tribunal –

or rather it prevents such issues being -

relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal –

and it goes on to say in (4) that:

This section does not affect any other law relating to matters of which judicial notice can be taken or about which proof is not required.

GAUDRON J:   That does not say that the trial judge can act on his own knowledge, does it.

MR HISLOP:   No, it does not.

GAUDRON J:   In fact, I would be surprised if a trial judge could, without giving a party an opportunity to lead contrary evidence.

MR HISLOP:   That may well be the case.  One of the points we make in our written argument is that the authorities are simply unclear as to the extent to which medical knowledge can be used.

GAUDRON J:   Well, they cannot be unclear.  A judge can only act on evidence, and if perchance the Act were to say he could act on his own knowledge, he would certainly have to draw that to the attention of the parties first, and give them an opportunity to deal with it, otherwise it would constitute a denial of procedural fairness.

MR HISLOP:   Save for this, your Honour, it is well established in the Compensation Court, for example, that a judge may fill in gaps in the evidence in relation to things such as wage rates, availability of employment, conditions of employment and the like.  He is entitled to do that.  He is entitled to use his knowledge as a specialised tribunal to determine what weight he should give to evidence, and indeed whether he should accept it or not. 

There is clearly, on the authorities that we have sent to the Court, a similar right in relation to medical matters.  What has not been, in our respectful submission, spelled out in the authorities is precisely how far that extends.

McHUGH J:   But it is only general knowledge that the judge in the specialist tribunal can take account of.  For example, a judge of the Commission could not take account of the fact that BHP paid its fitters and turners $600 a week.

MR HISLOP:   But equally, it could take into account the fact that fitters and turners in the labour market in Sydney or Wollongong or wherever, were paid $600 a week.

McHUGH J:   I know, but that is general.

MR HISLOP:   Yes, but in Tames Case, for example, it was held that the Commissioner was entitled to take into account his general knowledge of silicosis.  In Kennedy’s Case it was said that to an extent a specialised tribunal may have regard to the connection between symptoms and physiological damage, and the physiological effects of injury.

There really is an argument, in our respectful submission, that a specialised tribunal – bear in mind this tribunal was set up as a specialised tribunal to fast track cases of mesothelioma and other dust diseases.  It was staffed with judges of the Compensation Court, and as we point out in our written document.  The reading speech indicated that the compensation judges were being appointed to this court because of their medical expertise.  All of that expertise can be utilised, and in our submission, the trial judge here was entitled to utilise that knowledge in the way in which it did.  The special leave point, we say in that regard, is in relation to how far that extends.

GAUDRON J:   That is defined, the total exposure - not defined - he says “confirms medical evidence which is within the knowledge of the tribunal”, which presumably was not evidence in the case, though, “that total exposure is the effective aetiological factor”, which means the effective cause “of mesothelioma”.  That was the central issue in the case, was it not?

MR HISLOP:   Yes.

GAUDRON J:   Surely that was a finding that had to be based on evidence, and if there were other evidence of which the judge was aware he had to draw to the parties’ attention before he proceeded to act on it.

MR HISLOP:   That may be, your Honour, but we are submitting is that in the current state of the law it would be appropriate for this Court to look at the question because there certainly is an argument based on the cases that thus far exist, that a judge is entitled to act upon his previous knowledge as resulting from being a specialised tribunal.  Otherwise you could have this situation, for example:  a judge has sat on maybe hundreds if not thousands of cases of mesothelioma; he has heard the greatest experts in the world on the subject and as a result of that he has a residuum of general knowledge.  In some case a general practitioner in the suburbs who has no real expertise in the area says something which is just totally ridiculous.  In our submission, in that situation the judge at the tribunal can draw upon his specialised knowledge and not accept that evidence, and, indeed, act upon his knowledge as a specialised tribunal, and we submit that that is a situation which is arguable on the current authorities.

But, to return to the first problem, the situation is this:  that we had a man employed for some 22 years in a job; for the first 11 years of that he was exposed to asbestos.  We do not know what type of asbestos, the evidence does not tell us.  For the second 11 years he was exposed to asbestos which was of the type which is most conducive to causing mesothelioma.  There is evidence that the supplier of that asbestos was fully aware of the dangers of it and he was also aware, and failed to give any warning of it.  In those circumstances, having regard to the fact that the greater the amount of exposure the more likely the risk, it is our submission that it would be an appropriate conclusion to find that there was a material contribution, or a materially caused injury in this case, in the absence of any evidence to the contrary brought by those acting for the defendant.        In the circumstances of this case, of course Justice Beazley said that other factors simply did not afford an answer to the problem.

Let us assume the employer had no assets and the injured man had sued both the two suppliers – the earlier supplier, the later supplier – and his evidence rose no higher in the state of current scientific knowledge than that he had contracted mesothelioma, it had become apparent after the period during which the supply had occurred.  He would lose his case if the decision here is correct.  In our submission that would be a ‑ ‑ ‑

GAUDRON J:   But it depends whether the evidence permits of a finding that the cause was cumulative; it is the cumulative exposure as distinct from one period of exposure rather than the other.  That is just what the evidence did not seem to do here in the way that it was analysed by Justice Beazley.

MR HISLOP:   But in a case like this it would seem that one either says it is cumulative and the total amount of dose increases the risk, and therefore that establishes causation or, alternatively, you say, the evidence and the current state of scientific knowledge does not enable one to answer the question.  The appropriate response by the law as to causation therefore is we prima facie attribute causation to the supplier who supplied this stuff into the marketplace knowing it was dangerous and without giving any warning, and we asked him to show that it was not the cause.  That, in our submission, is consistent with the approach taken by this Court in Chappel v Hart and Naxakis, and it is an approach which ‑ ‑ ‑

McHUGH J:   It is certainly not consistent with the approach in Naxakis, and I would think not with Chappel either, and I dissented in Chappel.

MR HISLOP:   Not with the result, your Honour, but with what was said in those cases, if I read them correctly.  Particularly what, for example ‑ ‑ ‑

McHUGH J:   Naxakis was just a straightforward application of settled principle to a particular set of facts. 

MR HISLOP:   Yes, but there were statements in Naxakis by Justice Gaudron, by Justice Kirby and by Justice Callinan, which would support ‑ ‑ ‑

GAUDRON J:   But that is where you are dealing with an Act which brings about a particular result and you are determining the relationship of something else to that Act that brings about the particular result.  In this case you cannot say what Act brought about the particular result.  That is the difficulty.

MR HISLOP:   But you can say the totality of it did.

GAUDRON J:   That is, in fact, what was said at first instance.  But, once you go to the evidence, on the analysis of Justice Beazley, you cannot.

GAUDRON J:   They are your submissions?

MR HISLOP:   They are our submissions, yes, your Honour.

GAUDRON J:   Yes, thank you, Mr Hislop.  Yes, we need not trouble you, Mr Gee.

We are of the opinion that the decision of the Court of Appeal is not attended with sufficient doubt to justify the grant of special leave.  Costs having been the subject of written submissions, the order will be that the application is dismissed with costs.

The Court will now adjourn to reconstitute.

AT 12.30 PM THE MATTER WAS CONCLUDED