Martin v Amaca Pty Ltd (No 2)
[2023] VSC 319
•15 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
DUST DISEASES LIST
S ECI 2020 03744
| LEIGH MARTIN | Plaintiff |
| v | |
| AMACA PTY LTD & Ors | Defendant |
| (according to the attached schedule) |
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JUDGE: | John Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29-31 March, 3 April 2023 |
DATE OF JUDGMENT: | 15 June 2023 |
CASE MAY BE CITED AS: | Martin v Amaca Pty Ltd & Ors (No 2) |
MEDIUM NEUTRAL CITATION: | [2023] VSC 319 |
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TORTS – Negligence – Contribution proceedings between defendants – Plaintiff’s claim for damages for mesothelioma caused by inhalation of asbestos fibres – Plaintiff’s claim against defendant due to exposure to asbestos during home renovation settled – Defendant claimed a second exposure occurred at Scout Hall at St Bede’s School during scout meetings contributed to plaintiff’s damage – Onus of proof of exposure to asbestos at Scout Hall not discharged – Contribution proceedings dismissed – No new point of principle.
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APPEARANCES: | Counsel | Solicitors |
| For the Defendant | Mr C Blanden KC with Mr J Angenet | Mills Oakley |
| For the First Third Party | Mr M Clarke | Gilchrist Connell |
| For the Second Third Party | Ms K Bradey | Colin Biggers Paisley |
TABLE OF CONTENTS
Background......................................................................................................................................... 1
Issues.................................................................................................................................................... 1
The evidence....................................................................................................................................... 2
The plaintiff.................................................................................................................................... 2
The scout leaders........................................................................................................................... 4
A former student........................................................................................................................... 6
The limpet register (Dr Kilpatrick)............................................................................................. 6
The building project at the Scout Hall....................................................................................... 9
Mr Kottek..................................................................................................................................... 10
Affidavit of Vanessa Kemp........................................................................................................ 14
Resolution of issues......................................................................................................................... 16
Presence of asbestos and whether the plaintiff was exposed............................................... 16
Conclusion......................................................................................................................................... 25
HIS HONOUR:
Background
The defendant, Amaca, settled the plaintiff’s principal proceeding for damages against it in the sum of $1,050,000 plus costs agreed at $115,000. The plaintiff alleged that he was exposed to asbestos during the course of and from renovations to his family home at Balwyn in about 1980.
The fact that the plaintiff has mesothelioma, and the reasonableness of that settlement were not disputed in these third party proceedings, by which Amaca sought contribution and/or indemnity from the first third party (the Scouts) and the second third party (St Bede’s) towards the plaintiff's judgment and costs, on the basis that the plaintiff was also exposed to asbestos when attending scout meetings at the St Bede’s Primary School in a building known as the Scout Hall.
The Scouts and St Bede’s each contested their liability to contribute and the extent of any such contribution to the settlement.
Issues
The issues to be determined to resolve the contribution proceedings were:
(a) was asbestos present in or on the ceiling of the Scout Hall of St Bede's Primary School between 1980 and 1983;
(b) if so, was the plaintiff exposed to asbestos during the course of his attendance at St Bede’s Primary School in North Balwyn from about 1980 to 1983 as a member of the Fifth Camberwell North Scout Troop.
(c) was the risk of serious lung injury foreseeable to the Scouts and/or St Bede’s in the circumstances of the exposure alleged by Amaca to have occurred at the Scout Hall;
(d) did the Scouts and/or St Bede’s owe a duty of care to persons exposed to asbestos in the manner and to the extent alleged by Amaca to have occurred at the Scout Hall?
(e) if so, what standard of care ought to be imposed on a reasonable occupier of the Scout Hall in the circumstances;
(f) did the Scouts and/or St Bede’s breach any such duty of care to the plaintiff; and,
(g) the extent, if at all, to which Amaca is entitled to recover any contribution from the Scouts and/or St Bede's pursuant to s 23B(1) of the Wrongs Act1958 (Vic).
The evidence
The plaintiff
Leigh Martin, who is 53, between 1980 and June 1983 when he was between the ages of about 12 to 15, was a member of the Fifth Camberwell North Scout Troop. He attended the ground floor of a two-storey building, known as the Scout Hall, at St Bede’s Primary School. Although he also attended St Bede’s Primary as a student, he first went into the Scout Hall in 1980 when he was a student at Marcellin Junior School. He did not recollect any building work at the Scout Hall when he was at school there.
As a scout he attended activities in the Scout Hall regularly. The hall had an exposed concrete ceiling supported by exposed insulated steel beams. Mr Martin recalled holes in the insulation on the beams and dust and other debris around the hall which had fallen from the ceiling onto the floor. The insulation fell because the scouts would ‘muck around’ and, using poles or staffs designed for other uses, knock on the ceiling and on the beams, dislodging some of the concrete-like material that covered the beams that ended up on the floor. This was not a regular occurrence, but it occurred with sufficient frequency that in some places the disturbance of the insulation exposed the steel beam. On more than one occasion Mr Martin recalled that this debris could be seen on the floor. He recalled one occasion when he picked up some of this debris from the floor and placed it into a bin. The pieces of debris were like a grey compacted fibrous material that crumbled easily.
The scouting activities were supervised by three scout leaders, who gave evidence. Mr Martin recalled that one of those leaders identified this debris as asbestos.
Counsel: Was anything said to you by any of the leaders you've identified about the nature of that material?
Mr Martin:I couldn't tell you specifically which leader, but certainly we were told as a collective group that this material was asbestos. It was the first time I had ever heard about asbestos.
Counsel:And was anything said to you about whether you should or should not be handling that material?
Mr Martin:Ah, I believe we were told it was somehow dangerous to us, yes.
When cross examined, the plaintiff denied that he has difficulties with his long term memory, and I considered that denial to be truthful. He was firm in his recollection of beams and of the material that was dislodged as coming from the beams when boys thrust staffs or poles up into the ceiling into the material surrounding the beams. This activity was recalled by the scout leaders. When invited to comment on the evidence to be given by the scout leaders, Mr Martin said:
Mr Martin:As I said, I don't remember a specific instance of being told it was asbestos, and I don't – I don't recall which particular leader told us. But it's the only time that I'd ever heard the word asbestos was from one of the scout leaders.
Counsel:Is it fair – so you don't recall when you were allegedly told this, that's correct?
Mr Martin:Well, when I was attending scouts.
Counsel: Yes, but you don't recall what year it was, is that correct?
Mr Martin: No.
Counsel: And you don't recall who allegedly told you this?
Mr Martin: I believe that it was one of the scout leaders.
Counsel: Well, there's only three, and you can't pinpoint any of them?
Mr Martin:I couldn't tell you which specific scout leader it was, but we were told on more than one occasion, not to touch it. They would get very angry if anyone was ever whacking the ceiling…I don't know how else we were supposed to think about it.
Counsel:Well, have you just assumed that?
Mr Martin:No, they – they – they told us that the substance in the ceiling was asbestos, as I said. It's the only time I'd ever heard the word.
At some later time prior to about 1985 or 1986, after he had left the Fifth Camberwell North Scout Troop, Mr Martin visited the Scout Hall and noted that the ceiling was covered using wooden barriers.
In about July 2020, he consulted his general practitioner in Mornington, complaining of shortness of breath. An x-ray and CT scan revealed fluid in his lung and he was referred to a respiratory physician. Soon after, further diagnostic procedures revealed mesothelioma. On 7 August 2020, his specialist asked whether he had been exposed to asbestos. His evidence was that the first thing that came to his mind was the Scout Hall at St Bede’s. It was later established that he was exposed to asbestos from domestic renovations at the family home, also in about 1980, an exposure which may have overlapped with his time in scouts attending at the hall at St Bede’s. This home renovation exposure was the exposure in respect of which Amaca settled his principal proceeding.
Mr Martin’s outpatient medical record contained an entry dated 7 August 2020 that stated:
Asbestos exposure as child 12-14 in Scout Hall – loose falling
Mr Martin impressed me as a credible and reliable witness. I was satisfied that he gave his evidence from genuine recollection and he conceded matters about which he had no recall. There was no reason why he would have recalled to the physician what he was told about asbestos when asked in that medical context, unless that was what he actually heard the scout leaders say. Further, as will become apparent, there was a level of corroboration of his recollection about the activities of the scouts that caused material to be dislodged from the beams.
The scout leaders
John Williams was a volunteer scout leader in the Fifth Camberwell North Scout Troop between 1980 and 1983. His assistants were Stephen O’Callaghan and Michael Bourke. He did not recall the plaintiff. He gave no warning to the scouts that there was asbestos material in the Scout Hall and did not believe that at that time he knew what the dangers of asbestos were. He did not recall anyone else giving such a warning to the scouts.
Cross-examined, he said he had not had any occasion to recollect his views in the early 1980s about his evidence prior to about a week before giving evidence. He did not recall there being an exposed beam supporting the concrete ceiling, later stating there was not any visible steel beam. He could not recall any activity involving scouts pushing poles into the beams or the ceiling but agreed that such activity would have attracted a rebuke. He could not recall debris on the floor as described by the plaintiff.
Mr Williams was an honest witness but, lacking any relevant recall, his evidence was of no assistance on the issues before the court.
Stephen O’Callaghan was a scout in the Fifth Camberwell North Scout Troop, a student at St Bede’s Primary and a volunteer assistant scout leader from 1977 to 1983. He did not recall Mr Martin as a scout but did recall him as a neighbour who lived about five houses down the street, and whose family was friendly with his family. He could not recall the ceiling but did recall a grey cross beam, perhaps covered with insulation. He had no recollection of warning scouts that there was asbestos material in the Scout Hall and could not recall whether, at that time, he was aware of the dangers of exposure to asbestos. All he could say was that if he knew then some or all of what he knows about asbestos, he would have been concerned and would have said something.
Cross examined, he recalled a single occasion when he caught a scout using a staff, a long pole intended for parade purposes, to ‘poke at the ceiling’ and he reprimanded him for that. He could not recall that activity happening more frequently as the plaintiff described, and did not recall that this activity caused some of the material covering the steel beams to fall to the floor. He did not have any recall of being told that there was asbestos in the hall, but thought that he would have ‘reacted’ to being informed of that and ‘would’ve probably been concerned for my safety’.
Mr O’Callaghan was also an honest witness but, with little relevant recall, his evidence was not of great assistance on the issues before the court. Significantly, he confirmed that the activity involving scouts, a pole and the ceiling, as described by the plaintiff, occurred on at least one occasion, although he did not corroborate what the plaintiff said to the extent of recalling debris, asbestos-containing material, or warnings about asbestos, but he did not positively rule such matters out.
Michael Burke was the third volunteer assistant scout leader identified by the plaintiff. He also attended primary school at St Bede’s and became a scout leader from 1978. He knew Mr Martin, as a neighbour and through family connections and definitely recalled that he was a scout and that the scouts met in the Scout Hall at St Bede’s Primary School. Asked if he ever warned scouts of the presence of asbestos in the hall, he answered ‘Um, no, and I wasn't even aware there was asbestos there, to be honest, so no.’ He also could not say when he first became aware of the dangers of asbestos.
Mr Burke, also an honest witness, was of no assistance on the issues before the court save that, with his positive recollection, he was not the leader described by the plaintiff as having warned him about asbestos.
A former student
St Bede’s called Victoria Marie Wrigley, a registered nurse who attended St Bede’s Primary School from 1977 to 1983. She visited the Scout Hall regularly for weekly piano lessons. She could not recall the ceiling of the Scout Hall but did recall a grey steel beam in the centre of the ceiling. Her evidence was of no assistance on the issues before the court.
The limpet register (Dr Kilpatrick)
Amaca relied on what was referred to during the trial as Dr Kilpatrick’s limpet register. Dr Kilpatrick is a retired scientist and occupational hygienist. He is experienced in giving expert evidence in relation to occupational hygiene, having been a part-owner of Kilpatrick & Associates Pty Ltd, Occupational Hygiene & Ergonomic Consultants. He specialised in exposure to asbestos, fibres and dust.
In the course of his professional career, he became aware that a company called Insulation Materials & Services Pty Ltd (IMS) had been the predominant installer of sprayed asbestos in Victoria, having carried out that activity from in or around 1935 until asbestos spraying was banned in 1978. At about that time, IMS changed its activities to include spraying asbestos-free insulation. In or around 1980, the business and records of IMS were transferred to Aerify Pty Ltd (Aerify).
Dr Kilpatrick has had a long standing interest in identifying premises where sprayed asbestos still remained in situ and would pose a danger to the occupants, trades people and users of those premises. Having made contact with former employees of IMS, Dr Kilpatrick learned that the business records of IMS had been transferred to Aerify and he made contact with its managing director, Mr Peter Moverley.
Mr Moverley initially granted Dr Kilpatrick access to the IMS files. These files constituted business records of IMS in respect of installation and potential installation jobs involving sprayed asbestos acquired by Aerify when it purchased the IMS business.
Records from 1960 were available and in 1997 Dr Kilpatrick identified approximately 480 premises in which IMS had sprayed asbestos. Dr Kilpatrick described attending at a warehouse and examining the contents of approximately 15 to 20 archive boxes. These boxes contained manila folders and each asbestos spray installation job was covered by a separate manila folder. Dr Kilpatrick examined these files, recording the information in two notebooks from which he created a spreadsheet summary, a copy of which was tendered in evidence. The fate of the original files and of Dr Kilpatrick’s original notebooks is not known, but they may be presumed to have been destroyed. The size of these files varied depending on their contents. In some cases, there was little more than the quotation and when Dr Kilpatrick was unable to verify that an installation had been carried out, he noted in the spreadsheet that those jobs were ‘unverified’. Dr Kilpatrick described the files as meticulously maintained. In many cases there was sufficient documentation to be satisfied that sprayed asbestos had been installed and Dr Kilpatrick made his best estimate from those documents as to the approximate date of the work.
There was a file describing an installation at St Bede’s College in Marwal Avenue, Balwyn North. The job details were described as ‘beams’ and the date as ‘74’. No particular comment was recorded in relation to this entry such as, for example, unverified. The spreadsheet also contained a reference to the appropriate page of Dr Kilpatrick’s notebooks which, as noted, cannot now be produced and as to which Dr Kilpatrick had no independent recollection. Asked to explain the notation ‘beams’, Dr Kilpatrick stated:
Well I’ve never been to St Bede’s near Balwyn North, so I haven’t seen beams. It suggests to me steel RSJ beams sprayed with … three quarters of an inch of limpet asbestos.
The limpet register does not identify the Scout Hall at St Bede’s as the location of the installation. However, the evidence did not identify any other building on the St Bede’s campus as a possible location for beams that may have been sprayed with limpet asbestos in or around 1974.
Dr Kilpatrick stated that asbestos-free sprayed insulation came onto the market in 1978. The product Roberts M34 was the alternative choice that was then offered. On casual inspection, this product looks similar to limpet asbestos if made from amosite, but visual inspection was not sufficient to identify the product used.
When cross-examined, Dr Kilpatrick agreed that his limpet register could no longer be independently verified but, accepting that to be so, the evidence did not suggest any basis for considering the spread sheet as anything other than an honestly compiled, fair summary of contemporaneous business records. It was, of course, limited in terms of the information conveyed, compared, I would infer, to the original files. I accept Dr Kilpatrick’s evidence that common sense tells him that the limpet spray applied to beams would have been intended to achieve fire resistance, insulation and other building purposes, but that the limpet register does not identify the beams described by Mr Martin as the beams referred to in the file that he inspected in 1997.
Dr Kilpatrick recalled being interviewed by a journalist and seeing an article in The Age in 1999 that was tendered. The significance of this article is described later but for present purposes the article identified 1978 as the year when the practice of spraying asbestos products for insulation, fire and soundproofing was banned.
The limpet register is a circumstance to be taken into account but it is not, of itself, evidence of the presence of asbestos insulation sprayed onto the beams in the Scout Hall or that spraying occurred in 1974. At the least, it permits an inference that IMS, which was the contractor that might have performed the installation, was in possession of documents that persuaded Dr Kilpatrick that limpet asbestos may have been sprayed on beams at St Bede’s.
The building project at the Scout Hall
There was no evidence that the Scouts knew about or were involved in any renovation works at the Scout Hall. Nor was there evidence that St Bede’s undertook any renovation work at the Scout Hall, although it did not seem to be in dispute that the relevant renovations were performed at some point. Amaca tendered in evidence an extract from plans for renovation works that were stamped by Boroondara Council, as approved on 24 October 1973. These works encompassed additional classrooms and offices by adding a second storey to the Scout Hall. Amaca particularly relied on a notation on the approved drawing that said:
Steel floor beams to be fire protected with ‘Limpet’ asbestos fibre. Two steel columns to be concrete encased. See note on engineering drawings
However, an approval is not evidence of construction. The party with knowledge of these matters must be St Bede’s, but its evidence was quite limited. What was produced supports an inference of delay. A letter dated 8 July 1974 was discovered that stated that a grant application to assist with ‘the construction of classroom, remedial room and enlarged staff room’ did not receive an allocation in the 1974 financial year but would be further considered in September 1974. A second document, entitled CECV Building Priority Group Report for North Balwyn, St Bede’s, which is undated, refers to the construction works as ‘not urgent’ and the effect of deferral of the project to the 1976-78 triennium as ‘no problem’. There are no records evidencing financing or construction that might have incorporated limpet asbestos being sprayed onto the beams during the 1976-78 triennium.
The Scouts commented, correctly, that Amaca had not called evidence from an expert to establish when and what construction work was done, whether insulation was sprayed onto the beams and whether there was any basis to determine that any insulation sprayed was limpet asbestos (and its composition) or a non-asbestos based spray.
Mr Kottek
Mr Michael Kottek graduated with a Master of Science from the University of Melbourne in 1993, majoring in history and the philosophy of science. He later qualified from Monash University with a graduate diploma in Occupational and Environmental Health. Since 1999, he has worked as a consultant specialising in exposure and risk assessments for a variety of chemical and physical hazards. Those assessments can involve taking a full occupational and residential history. Mr Kottek has prepared literature surveys, undertaken research on the cellulose composition of Australian manufactured flexible asbestos cement sheeting and given evidence in courts and tribunals throughout Australia. He is the author or joint author of numerous publications and presentations concerning asbestos exposure and mesothelioma.
Mr Kottek’s first report dated 5 April 2021 deals with his investigations in respect of renovations at Mr Martin’s family home in North Balwyn. His second report dated 10 November 2022 expressed his opinion that the plaintiff experienced exposure to elevated levels of amosite asbestos while attending the Scout Hall at St Bede’s Primary School.
This conclusion was based upon accepting that Dr Kilpatrick’s limpet register establishes that IMS sprayed limpet asbestos in the Scout Hall in or around 1974. He stated:
His review (which may have included contacting St Bede’s) indicated that the contract to install the limpet asbestos was indeed completed.
I pause to note that the accuracy of this assumption has not been established by Amaca. The limited extent to which inferences can be drawn from Dr Kilpatrick’s evidence has been discussed.
Mr Kottek next expressed the opinion that the sprayed limpet asbestos installed at St Bede’s would have contained a very high percentage of amosite asbestos. He has also assumed that ‘it appears possible that the limpet was sprayed on the entirety of the scout hall ceiling’. This assumption, too, has not been proved in evidence. I am satisfied that if limpet was applied at all in the Scout Hall, its use did not extend beyond being sprayed onto the supporting RSJ steel beams.
Mr Kottek averted to the possibility that WorkSafe Victoria might possess some documents relating to removal work in respect of limpet asbestos that would exist if it had been sprayed and later removed, but there was no evidence of any follow up on that line of enquiry.
Accepting Mr Martin’s recollection of having handled debris not from the insulation surrounding the beams and from the activities of the scouts that he described in disturbing that insulation coating, Mr Kottek opined that Mr Martin would have experienced exposure to elevated levels of amosite asbestos.
By reference to these assumptions and the demonstrable greater potency of amphibole asbestos at inducing mesothelioma, and his investigation of the exposure at Mr Martin’s family home, Mr Kottek opined that the great bulk of Mr Martin’s risk of mesothelioma is likely to be attributable to his attendance at the Scout Hall at St Bede’s.
In a third report dated 17 March 2023, Mr Kottek stated his introductory assumption to be that Mr Martin attended the scout group from around 1980-1983, there was dust debris from the sprayed asbestos ceiling which had fallen on the floor. Mr Martin recalled picking up the sprayed asbestos debris. The ceiling was later covered with wooden barriers.
Mr Kottek stated that a survey of the literature reveals more than 1700 articles referring to the hazards of asbestos by 1974 and by 1980 the volume of literature on asbestos hazards defies any attempted comprehensive cataloguing. In his opinion, published articles demonstrated that it was recognised that even incidental occupational exposure to asbestos carried the risk of mesothelioma and that compliance with occupational exposure standards may not provide protection against serious disease. Practically, all of the articles that he had records for, were available in Australia during the period of exposure. With particular reference to sprayed asbestos coatings, Mr Kottek noted that by 1970, calls for the banning of sprayed asbestos because of its hazardous nature, were appearing in the literature. By 1975, the Commonwealth Department of Housing and Construction had recommended against the use of sprayed asbestos as an internal architectural finish. His report set out a review of this literature and he concluded:
In my opinion, by 1974 it was recognised that sprayed asbestos was a product that created a hazard during its installation, as well as creating an ongoing hazard to building occupants due to the potential for considerable quantities of airborne asbestos fibres to be released when disturbed. I note again Dr McNulty’s 1970 letter outlining his concern that sprayed asbestos was installed in conditions where children may be exposed to dust from falling sprayed asbestos.
Mr Kottek noted that in the period when Mr Martin attended the scout group, precautions that could have been taken to reduce Mr Martin’s exposure to asbestos included the following:
(a) Not specifying sprayed asbestos as a fireproofing;
(b) Applying a sealant to the surface of the sprayed asbestos;
(c) Encapsulating the sprayed asbestos with boxing;
(d) Providing approved vacuum cleaners to clean any dust derived from ceiling spaces containing asbestos sprayed insulation.
Mr Kottek noted that many of these precautions are explicit or implicit in a number of contemporary sources of guidance and that, in his opinion, these precautions were likely to have been advised by public health authorities had they been consulted at the time.
Cross-examined, Mr Kottek agreed with the suggestion that Amaca was aware of the risk of exposure to asbestos causing lung disease from 1966, and that they continued manufacturing products containing asbestos until approximately 1985. They were at the forefront of knowledge about the risk, aware of what was being published in the literature and in touch with researchers around the world, including maintaining a library.
Mr Kottek accepted that when expressing the opinion that there was a greater risk associated with the exposure to amosite in the Scout Hall, Mr Kottek had not conducted a cumulative exposure assessment. In his view, in circumstances such as those of Mr Martin, such assessments were not particularly reliable, being designed for large studies. For example, when comparing a big population of people. All that they achieved was to formalise speculation into a mathematical form.
Agreeing that the level of exposure is always relevant to apportioning responsibility between two different exposure periods, Mr Kottek opined that there is a significant difference in the potency between amosite and a chrysotile, in the vicinity of 100-1. Mr Martin’s exposure from the home renovation was to a chrysotile while Mr Kottek believed that it was probable that a limpet asbestos spray applied at the relevant time would contain amosite. Secondly, the home renovations appeared to be an exposure over a short period of time and did not involve handling asbestos debris as he assumed to be the case in the Scout Hall.
I infer from questions of Mr Kottek from counsel for the scouts, that he accepted that the source of many of the publications upon which he relied in expressing his opinion, were less likely to be available to an organisation like the Scouts Association, often being building and/or architectural publications, generally concerned with risk of exposure in an occupational setting.
Mr Kottek accepted that the drawing with the annotation that the structural steel was to be coated with limpet asbestos as a fire prevention measure, did not necessarily establish that limpet asbestos had been applied.
Mr Kottek noted that sprayed asbestos was prohibited by the Labour & Industry Asbestos Regulations in 1978 but that the use of asbestos spray was winding down in the period running up to the passage of those regulations. He considered that decline in use of asbestos spray to be evident from Dr Kilpatrick’s limpet register. The decline in the use of asbestos spray occurred for a whole lot of reasons including the perspective ban and the development of alternative asbestos-free spray products. Mr Kottek said it was difficult to distinguish an asbestos-based product from a non‑asbestos based product by visual inspection alone and that laboratory analysis was required in order to be certain. Although his assessment of the causal potency of the different exposures was based on an assumption that limpet asbestos had covered the ceiling of the Scout Hall, he still maintained his opinion if the use of the sprayed material was restricted to the structural steel. In his view, the substantial difference in the potency of the asbestos fibres involved in each form of assumed exposure made his attribution of the potency of the Scout Hall exposure to be dominant. He accepted that a limpet spray utilising chrysotile only with no amosite would be significantly less potent. Mr Kottek also agreed that the frequency of the plaintiff’s exposure to limpet asbestos in the Scout Hall was relevant to the extent of attribution of causal responsibility that he had assessed. However, although Mr Kottek accepted that he did not have a detailed history from Mr Martin about the frequency of exposure, his opinion was substantially unaffected due to the manifest difference in potency.
Affidavit of Vanessa Kemp
St Bede’s tendered, without objection, an affidavit from its solicitor, Ms Kemp, deposing as to the attempts made to identify relevant witnesses and explain the source of its discovered documents. Ms Kemp explained that the second third party, Melbourne Archdiocese Catholic Schools Ltd (MACS) (referred to in these reasons as St Bede’s) was established in 2020 by the Archbishop of Melbourne to assume the governments and operations of Catholic schools previously operated in an unincorporated form by parish priests, associations of parish priests or the Archbishop. During the relevant period, the school was operated by the parish priest, three of whom served over that time.
Ms Kemp deposed to the following further investigations:
(a) The current principal of the school reviewed records to try and identify former lay staff, however was unable to find current contact details.
(b) Staff records were located for some teachers at the time, however current contact details were unable to be identified.
(c) White Pages, social media and internet searches were conducted without success.
(d) Enquiries were made with former students who remain part of the school community as to whether they knew of the whereabouts of former teachers from the school.
(e) Enquiries were made with the current parish priest to try and identify contact details of other potential witnesses, however enquiries were unsuccessful.
The consequence of the lack of success with these enquiries was that St Bede’s has been unable to obtain evidence as to its knowledge of the presence of asbestos in the Scout Hall or whether the use of asbestos in the Scout Hall presented a risk to a casual occupier such as the plaintiff.
Ms Kemp also stated that thorough searches of documents and records held by MACS (including archived records) were made; enquiries were made with the current principal of St Bede’s in relation to any documents held by the school and enquiries were also made with the parish priest at the Parish of St Anne and St Bede in relation to any relevant documents in the possession of the parish.
Resolution of issues
Presence of asbestos and whether the plaintiff was exposed
There was no direct evidence before the court of the presence of asbestos in the Scout Hall. It was necessary for Amaca to persuade me that, having regard to the whole of the circumstances demonstrated by the evidence, the probable inference that is open is that, prior to 1980, limpet asbestos spray was applied to the RSJ beams in the Scout Hall, permitting the further inference that there was asbestos in the Scout Hall when the plaintiff was there on scouting activities.
The proper approach to the assessment of circumstantial evidence was stated by the High Court in Chamberlain v The Queen (No 2),[1] in the context of a criminal prosecution.
It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence.
[1](1984) 153 CLR 521, 536 (citations omitted).
Applying Chamberlain in a civil context, the Victorian Court of Appeal in Chong v CC Containers, said:
Where circumstantial evidence is relied upon, it is ‘the weight which is to be given to the united force of all of the circumstances’ in combination which must be considered. As was said by Winneke P in Transport Industries Insurance Co Ltd v Longmuir:
In cases of circumstantial evidence each proven fact may gain support from the others and, although each, considered in isolation, might not provide a sound basis for inferring the ultimate fact to be proved, a combination of all facts might provide a compelling basis from which to draw that inference.[2]
[2](2015) 49 VR 402, 441-2 [134] (citations omitted).
Likewise in Nolan v Nolan[3], in language perhaps influenced by the subject matter of the proceeding, the Court of Appeal observed:
Although the observations made by the High Court in Chamberlain (No 2) and Shepherd were expressed in the context of criminal proceedings, the principles also have application in civil cases. Indeed, Tadgell, JA explained in Longmuir that, both in the civil and criminal law context, the evidence in question must be evaluated as a whole and that the object of the exercise in a case such as the present, where direct proof of the disposition contended for is not available, is to ascertain ‘whether the evidence paints a picture to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.’ Thus, it seems plain enough that, when a court is asked to infer a fact from various items of indirect evidence, it must consider the combined or cumulative effect of the evidence.
[3][2004] VSCA 134, [120] (citations omitted).
I am satisfied that when the plaintiff was in the Scout Hall engaged in scouting activities, insulation matter was dislodged from the RSJ beams in the hall broadly in the manner described by the plaintiff. This caused an exposure by the mechanism described by Mr Kottek. But to what, if anything, was Mr Martin exposed?
Looking both at each proven fact, as a fact in context, and also at the combined or cumulative effect of the whole of the evidence, I am not persuaded, for the reasons that follow, that it is more probable than not that the plaintiff was exposed to asbestos in the Scout Hall.
Perhaps the strongest basis identified by the evidence in support of the inference that the insulation material contained asbestos is the plaintiff’s own evidence. I accept that when, some 40 years later, the plaintiff was confronted with his diagnosis and asked whether he had ever been exposed to asbestos, he nominated the Scout Hall. That he did so was independently corroborated by the hospital records. I accept that his recollection of the possibility of exposure at the Scout Hall is reliable. I see no reason why that opportunity for exposure would otherwise have come to mind.
On the one hand, the circumstances of this conversation with a treating doctor were significant. It was not an enquiry by a lawyer or expert seeking to establish a potential claim against an asbestos user. It strikes me as improbable that Mr Martin would so respond to that question without a genuine recollection of events that occurred back in 1980. It was not a recollection that could be realistically matched with any relevant self-interest that might cast doubt on Mr Martin’s credibility or his reliability. Rather what he recalled was, he said, the first time he ever heard about asbestos, which was an occasion when it came with a warning of a risk that, in his case, had eventuated. Amaca submitted that it didn’t matter that he could not recall precisely who gave that warning.
On the other hand, common experience tells us there are reasons why the recollection of a 12-13 year old boy of an event and a statement some 40 years earlier may be honest but not be reliable. The troubling issue is whether I can be affirmatively satisfied that it was a scout leader who mentioned asbestos. It might, for example, have been another scout that referred to asbestos or aspects of Mr Martin’s recollection could reflect a transposition of other events or occasions; memory, as they say, can be fickle. If a scout leader did say this, I have no basis either to infer that this was a warning that came from St Bede’s, or indeed that what the scout leader may have said was based on reliable knowledge. Mr Martin could not identify the particular scout leader and none recalled saying this. Cross-examination did not expose any basis to simply dismiss Mr Martin’s recollection as not genuine and I will not speculate. That the statement was made by an informed scout leader remains a possibility, as does a conclusion that the debris on the floor, evidently insulation material, contained asbestos, leading to a statement about asbestos made by someone else and associated by Mr Martin with the warning from the scout leader. Mr Martin’s evidence of his recollection of what he was told deserves a place in the evidentiary matrix being considered but it does not provide the answer.
That said, at its highest, Mr Martin’s evidence could not establish the presence of asbestos, only that he honestly believed that he was told there was asbestos in the Scout Hall and that the debris should not be handled. If I accept that asbestos was mentioned, consistently with Mr Martin’s recall of that fact, is there any nexus between the actual presence of asbestos and its presumed presence, arising from assumptions about the nature of the debris or the insulation on the beam? Other circumstances noted by the evidence must be evaluated to ascertain whether the inferences for which Amaca contended can be drawn.
First, there is the fact of Mr Martin’s diagnosis. Mesothelioma is caused by exposure to asbestos. However, his diagnosis is consistent with the home renovation exposure to asbestos that occurred in roughly the same timeframe. This is not a factor that renders more probable the existence of asbestos in the Scout Hall. If two exposures were established, at home and at the Scout Hall, Mr Kottek’s opinion was that it is more likely mesothelioma was caused by the Scout Hall exposure (because of the type of asbestos, the nature of the contact with it, and the duration of exposure), but as the exposure at the Scout Hall is not established, the fact of exposure alone does not address the likelihood that such exposure took place at the Scout Hall.
Secondly, there is the evidence of the scout leaders. Of those witnesses, only the evidence of Mr O’Callaghan need be further considered. There are two relevant aspects to his evidence. First, he corroborated what Mr Martin described as the activity of the scouts that resulted in debris from the insulation on the beams being dislodged. Each of Mr Martin and Mr O’Callaghan agree that:
(a) There was an insulation material on the beam;
(b) There was activity by which scouts poked at the ceiling with a staff or pole.
I am satisfied that Mr O’Callaghan’s recollections about these matters, such as they were, were not inconsistent with Mr Martin’s explanation of how insulation debris came to be dislodged and on the floor. Next, I accept Mr Martin’s recollection that he picked up a piece of this debris and put it in the bin and that what he handled was a grey compacted fibrous material that crumbled easily. I accept Amaca’s submission that the witnesses largely agreed that there was a grey coloured covering on the ceiling beam that was likely to be insulation.
However, can I infer that this material is identified or known to be asbestos, or more generally, can the nature of the insulation material on the beams in the Scout Hall be identified; was it limpet asbestos or did it contain asbestos? On the one hand, Mr Martin’s evidence was that he was told ‘as a collective group that this material was asbestos’ and that it was ‘somehow dangerous to us’. Clearly, this warning lacked sufficient impact to terminate the activity because Mr Martin described it as occurring on a number of occasions, although not with regularity, but it had sufficient impact to be recalled 40 years later. It may be that Mr O’Callaghan’s intervention was the last of those occasions but I cannot so conclude. It is unsurprising that Mr Martin could not recall which scout leader made the statement that he recalled about asbestos, but was asbestos mentioned in a statement made by a scout leader?
The second aspect of Mr O’Callaghan’s evidence that was relevant was that fact that Mr O’Callaghan recalled that he did reprimand a student for engaging in the activity that Mr Martin described. This corroborates, in part, a significant aspect of Mr Martin’s recollection, but falls short of corroborating that he heard the statement about asbestos. Mr Martin said the scout leaders would get very angry if anybody was ‘ever whacking the ceiling’ but the activity described by Mr O’Callaghan could easily be sufficient to warrant that response and did not extend to any recollection of debris being dislodged or of a scout leader giving the asbestos warning. Mr O’Callaghan neither contradicted the plaintiff’s further specific recollection nor had any recall of being told that there was asbestos in the hall, although he ‘would have reacted’ to such information.
For present purposes, Mr O’Callaghan’s speculation about what might have happened is not helpful. He had no actual recall and his evidence does not reveal a circumstance that persuades me that Mr Martin was mistaken and did not hear a warning about asbestos in the context of the debris from the insulation, and that I should not accept that there was no mention of asbestos by any scout leader. While Mr O’Callaghan has no recollection of such a statement, it may have been said by one of Mr Williams or Mr Burke who now have no recall of any incident at all. Absent any recall, a denial of Mr Martin’s plausible recall of the statement and the event is not probative.
Accepting then that I can infer that Mr Martin probably heard a scout leader give the asbestos warning in the circumstances described, there is still an insufficient basis for the necessary inference. The warning considered on its own, could not be a basis to identify the insulation as containing asbestos.
Amaca contended that the asbestos statement heard by Mr Martin was an admission constituting an exception to the hearsay rule pursuant to s 81 of the Evidence Act 2008 (Vic) (the Act). Section 81 provides that the hearsay rule does not apply to evidence of an admission or to evidence of a previous representation that was made in relation to an admission at the time the admission was made, or shortly before or after that time, and to which it is reasonably necessary to refer in order to understand the admission. The relevant statement was that the material, referring to the debris, was asbestos. This was, Amaca submitted, an admission against interest by a servant or agent of the Scouts.
One difficulty with this submission was that Amaca did not establish that the scout leaders were persons who had authority to make statements on behalf of the Scouts (and certainly not on behalf of St Bede’s). The scout leaders were volunteers, young men attending the Scout Hall on a regular basis for an hour or two. There was no evidence of any contact with representatives of St Bede’s or, at least in connection with the occupation of the Scout Hall, more senior administrators within the Scouts in connection with the condition of the building.
Section 87 postulates three circumstances which, if reasonably open to be accepted, establish that a representation is admissible. It is not reasonably open to find that they had ‘authority to make statements on behalf of the party’ in relation to the insulation on the beams as s 87(1)(a) contemplates. Nor could it be said that the volunteer scout leaders were employees of the Scouts, or had authority otherwise to act for the Scouts and that the representation constituted by the asbestos warning related to a matter within the scope of their employment or authority as s 87(1)(b) contemplates. Such matters were not explored in evidence, and I was simply invited to draw that inference. I decline to do so. The third circumstance is where there is a representation made in furtherance of a common purpose (s 87(1)(c) refers), which has no present application.
I am not satisfied that the asbestos waning was an admission constituting an exception to the hearsay rule and reject Amaca’s contention.
Next, Amaca relied on the approved drawing that referred to insulating the beam with limpet asbestos. This, Amaca submitted, was an overwhelming coincidence, but I do not agree. I accept that it is a circumstance that raises the possibility that asbestos was present, but, again, when considered in the context of the whole of the evidence, I note countervailing considerations that leave me unpersuaded of the probability of asbestos being present.
The real question is whether the approved drawing can support an inference that the beam was in fact later insulated in accordance with that drawing, such that asbestos was present in the relevant period. The drawing was stamped by the council in October 1973, but all that is represented is that St Bede’s had council approval at that time to construct a building with limpet insulation on the beams as shown on that drawing. I am satisfied that the renovation/extension works were not completed at that time and the entry ‘74’ in the limpet register, which may have even come from that drawing, cannot persuade me as to when limpet asbestos may have been applied. It is probable that IMS was asked to quote on the job and may have been asked to do so around the time of the approved drawing, receiving a copy of the drawing for that purpose or there may have been other documents on the IMS file that persuaded Dr Kilpatrick to make that note. Precisely when limpet insulation may have been installed was not the focus of Dr Kilpatrick’s investigation, although I accept it was useful to him to record what the file revealed about a possible installation date. But the limpet register sits uneasily with the documents discovered by St Bede’s that imply that the project was not funded as anticipated and was delayed until, at least the 1976-78 triennium. Mr Martin’s lack of a recollection of building works at the Scout Hall is not inconsistent with a delay in that work being done because he finished as a student at St Bede’s at the end of 1977.
Whether looked at in isolation or in the context such as it was revealed by the evidence, I was not affirmatively persuaded by the drawing or the limpet register that asbestos was present in the Scout Hall. Yet again, these are circumstances hinting at the possibility that asbestos was present.
Further, there was evidence of a transition away from asbestos insulation that became an increasing trend leading up to and following the prohibition of sprayed asbestos in 1978. If the project was delayed, it is possible that the insulation material was changed from the 1973 specification, or that IMS never actually did the insulation spray job, or that, if it did, by the time the spray job was done, Roberts M34 was specified and applied. On the evidence, debris knocked from the beams, if insulated with Roberts M34, could readily be mistaken for asbestos.
Another issue that remained unpersuasive was the possible correlation between the ‘beams’ noted in the limpet register as being at ‘St Bede’s’ in ‘74’ and the drawing, which identified beams in the Scout Hall, and the absence of evidence that other works involving insulating beams were carried out at St Bede’s around this time. This was, in Amaca’s submission, another overwhelming coincidence. I consider the connection was tenuous and did not amount to a circumstance that added any weight to the drawing and the limpet register as circumstances supporting the inference for which Amaca contended.
Amaca contended that a photograph taken in 1985 showed that the beams were no longer covered with insulation. They submitted that if insulation was present in 1980–1983 but no longer present in 1985, the obvious answer is that someone identified the insulation as containing asbestos. I could not draw any conclusion about the 1985 photograph, particularly the speculative use that Amaca made of it. The link that Amaca contended established this path of inferential reasoning was the exposure of the dangers of sprayed limpet asbestos insulation in 1978, which I could accept had occurred by then because of the article from The Age newspaper that publicised Dr Kilpatrick’s work.
I was not persuaded by this submission because relevant witnesses were not taken, on the one hand, to the Age article, or Dr Kilpatrick or Mr Kottek to the 1985 photo. This was not ‘evidence’ simply because counsel submitted in final address a theory based on the article. Mr Kottek, in answer to my question, informed me that the Building Regulations required that beams be insulated to establish a fire rating so it seems improbable that the insulation on the beams would be removed and not replaced.
Finally, on the issue of whether there was asbestos present in the Scout Hall, Amaca bore the onus and the burden of proof. Mr Martin’s evidence could not satisfy an evidentiary burden such as might cast an onus on the Scouts, or more pertinently, St Bede’s, to affirmatively demonstrate the absence of asbestos. There was a faint suggestion in the evidence that the insulation may have been removed – was the ceiling covered using wooden barriers – but that suggestion was not taken up by any party and explored in a manner that might permit a finding either way. That said, two further factors can be noted.
First, the evidence on behalf of St Bede’s that it took reasonable, but unsuccessful steps to identify relevant witnesses and documents was not challenged. Secondly, Amaca did not explain whether any expert investigation was conducted to establish whether there were any traces of asbestos remaining in the Scout Hall, or whether such an investigation would be futile. Neither did it lead evidence of any investigation of regulatory agencies that may have acquired information about any covering up of installed asbestos, or the removal of such covers and of the insulation at any later point in time.
Having considered the several incidents and matters that Amaca contended permitted me to infer, on the balance of probabilities, that asbestos was present in the Scout Hall and the plaintiff was exposed to it, it remains to step back and look at the whole of the evidence to take an informed, considered, qualitative appreciation of whether, in balancing the strengths and weaknesses evident in the evidence considered on total, I am persuaded of the inferences for which Amaca contended.
Doing so, I have no hesitation in concluding that it is possible that asbestos was present in the insulation and the plaintiff was exposed to it. It is equally open to view the evidence as supporting the possibility that there was not asbestos in the insulation or the debris knocked from it and there was no exposure. There is not a cumulative effect that can be drawn from the evidence that persuades me that the first of these possibilities is a probability. Either, the specific circumstances relied on do not, severally, go far enough to compel the inferences as probable or they are answered by countervailing considerations. Because of this feature of the diverse circumstances raised by the evidence, I was not persuaded by Amaca that the more probable inference, no matter what way the evidence is assessed, was that the beams were sprayed with insulation containing asbestos, which insulation was present in the Scout Hall when the plaintiff was there for scouting activities.
Conclusion
As Amaca has failed to discharge its burden of proof on these first two critical issues, it is unnecessary to consider the remaining issues raised by the parties.
The contribution proceeding will be dismissed. In the ordinary course, costs following the event, I would order that Amaca pay the costs of the third parties of the contribution proceeding. I do not know whether the proceeding has followed the ordinary course or whether there are other matters warranting consideration. I will reserve costs and invite the parties to submit by 23 June 2023 either a consent minute dealing with costs or a brief submission, and any supporting affidavit, in favour of, or against, some alternative costs order. Unless persuaded by a submission to reconvene the hearing, I will resolve the issue of costs on the papers.
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SCHEDULE OF PARTIES
S ECI 2020 03744
| LEIGH MARTIN | Plaintiff |
| And | |
| AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP) | Defendant |
| And | |
| THE SCOUT ASSOCIATION OF AUSTRALIA | First Third Party |
| And | |
| MELBOURNE ARCHIOCESE CATHOLIC SCHOOLS LTD | Second Third Party |
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