Moss v Amaca Pty Ltd (Formerly James Hardie and Co Pty Ltd)
[2006] WASC 311
•22 DECEMBER 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MOSS -v- AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) [2006] WASC 311
CORAM: LE MIERE J
HEARD: 2-5, 8-10 MAY, 28-30 JUNE 2006
DELIVERED : 22 DECEMBER 2006
FILE NO/S: CIV 1089 of 2006
BETWEEN: DENNIS WALTER MOSS
Plaintiff
AND
AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) (ACN 000 035 512)
Defendant
Catchwords:
Torts - Negligence - Personal injury arising from exposure to asbestos - Whether duty of care exists - Whether injury foreseeable - Different classes applicable for the purposes of assessing foreseeability - Injury to the plaintiff as a home handyman reasonably foreseeable to a person in the defendant's position - Whether bystander exposure foreseeable - Turns on own facts
Torts - Negligence - Personal injury arising from exposure to asbestos - Duty of care - Scope of the duty of care - Duty to take reasonable care to avoid injury being suffered by those using the product as intended or in a normal manner
Torts - Negligence - Personal injury arising from exposure to asbestos - Duty of care - Whether defendant negligently breached duty of care - Whether warnings and cautions were sufficient to discharge duty - Turns on own facts
Torts - Negligence - Personal injury arising from exposure to asbestos - Breach of duty of care - Whether breach caused or materially contributed to plaintiff's injury - Causation in fact - Whether defendant must discharge an evidential onus following plaintiff establishing prima facie case - City of Stirling v Tremeer [2006] WASCA 73 applied
Legislation:
Civil Liability Act 2002 (WA), s 5B(1), s 10A(1)
Result:
Claim allowed
Judgment of $225,000 awarded
Category: A
Representation:
Counsel:
Plaintiff: Mr J R C Gordon
Defendant: Mr G M Watson & Mr A J Power
Solicitors:
Plaintiff: Slater & Gordon
Defendant: Jarman McKenna
Case(s) referred to in judgment(s):
Abadon v The Queen [1983] 1 WLR 126
Barker v Corus UK Ltd [2006] UKHL 20
Bennett v Minister for Community Welfare (1992) 176 CLR 408
BI (Contracting) Pty Ltd v The Myer Emporium Ltd [2005] NSWCA 305
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Brawski v Quayle [1966] VR 382
Chappel v Hart (1998) 195 CLR 232
City of Stirling v Tremeer [2006] WASCA 73
Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469
Donoghue v Stevenson [1932] AC 562
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32
Julia Farr Services Inc v Hayes [2003] NSWCA 37
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
McGhee v National Coal Board [1972] 3 All ER 1008
Naxakis v Western General Hospital (1999) 197 CLR 269
R v Abadon [1983] 1 WLR 364
Rosenberg v Percival (2001) 205 CLR 434
Royal & Sun Alliance Insurance Ltd v Betta Industries Pty Ltd; Harlander Pty Ltd (in liq) v State of New South Wales [2002] NSWCA 323
Seltsam Pty Ltd v McNeill [2006] NSWCA 158
Thompson v Johnson & Johnson Pty Ltd [1991] 2 VR 449
Wilsher v Essex Area Health Authority [1988] AC 1074
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Adelaide Chemical and Fertiliser Co Ltd v Carlyle (1940) 64 CLR 514
Amaca v Wallaby Grip [2005] NSWDDT 41
Anderson v Enfield City Corporation (1983) 34 SASR 472
Bale v Seltsam Pty Ltd [1996] QCA 288
Barnes v Irwell Valley Water Board [1939] 1 KB 21
Barrow and Heys v CSR Ltd, unreported; SCt of WA (Rowland J); Library No 7231; 4 August 1988
Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307
Best v Yellow Express Carriers Ltd (in liq) [2004] NSWDDT 46
Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121
Bolton v Stone [1951] AC 850
Browne v Cockatoo Dockyard Pty Ltd (1999) 18 NSWCCR 618
Chance v Alcoa of Australia Ltd (1990) A Tort Rep 81-017
Chapman v Hearse (1961) 106 CLR 112
Clark v Kramer [1986] WAR 54
Cockatoo Dockyard Pty Ltd v Browne [2001] 21 NSWCCR 544
Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469
Cominco Ltd v Westinghouse Canada Ltd (1981) 127 DLR (3d) 544
Commonwealth of Australia v Elliott [2004] NSWCA 360
Commonwealth v McLean (1996) 41 NSWLR 389
Comstock v General Motors (1959) 78 ALR 2d 449
Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1
CSR Ltd v Wren (1997) 15 NSWCCR 650
CSR Ltd v Young (1998) 16 NSWCCR 56
Drakos v Woolworths (SA) Ltd [1991] 56 SASR 431
E M Baldwin & Son Pty Ltd v Plane (1999) A Tort Rep 81-499
Easther v Amaca Pty Ltd [2001] WASC 328
Eaton v Carrier Air Conditioning Pty Ltd [2004] NSWDDT
Flannery v Shire of Leonora [2001] WASCA 47
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hall v Tarlinton (1978) 19 ALR 501
Hughes v Lord Advocate (1963) AC 837
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Jones v Dunkel (1959) 101 CLR 298
Jsekarb Pty Ltd v Plane (1999) A Tort Rep 81-499
Julia Farr Services Inc v Hayes (2003) 25 NSWCCR 138
Kars v Kars (1996) 187 CLR 354
Kingsgrove RSL v Spasevski [2002] NSWCA 342
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Lee Transport Co Ltd v Watson (1940) 64 CLR 1
Levi v Colgate-Palmolive (1941) 41 SR(NSW) 48
Margereson v J W Roberts Ltd [1996] PIQR 154
McNeill v Seltsam Pty Ltd [2005] NSWDDT 51
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Misiani (as Executor of the Will of Misiani (dec)) v Welshpool Engineering Pty Ltd (in liq) [2003] WASC 263
Mokta v Metro Meat International Ltd [2005] WASCA 143
Morgan v Tame (2000) 49 NSWLR 21
Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383
Nagle v Rottnest Island Authority (1993) 177 CLR 423
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
Neill v New South Wales Fresh Food and Ice Pty Ltd (1963) 108 CLR 362
Nicholson v Atlas Steel Foundry & Engineering Co Ltd (1957) 1 All ER 776
Page v Smith [1996] 1 AC 155
Paul v Rendell (1981) 55 ALJR 371
Perre v Apand Pty Ltd (1999) 198 CLR 180
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Purkess v Crittenden (1965) 114 CLR 164
Qantas Airways Ltd (No 2) v Cameron (1996) 68 FCR 367
Rentz v Seltsam [2004] NSWDDT 15
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [1999] NSWDDT 5
Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd [2001] NSWCA 461
Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 2) [1987] VR 281
Seltsam Ltd & Manufacturers Mutual Insurance Ltd v Minahan (1996) 13 NSWCCR 410
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
Shire of Brookton v Water Corporation [2003] WASCA 240
Smith v Leech Brain & Co Ltd [1962] 2 QB 405
Stevedoring Industry Finance Committee v Gibson (2000) 20 NSWCCR 417
Sullivan v Moody (2001) 207 CLR 562
Suosaari v Steinhardt [1989] 2 Qd R 477
Sutherland Shire Council v Heyman (1985) 157 CLR 424
Sydney County Council v Furner (1991) 7 NSWCCR 210
Tame v State of New South Wales (2002) 211 CLR 317
Todman v Victa Ltd (1982) VR 849
Todorovic v Waller (1981) 150 CLR 402
Van Gervan v Fenton (1992) 175 CLR 327
Walton & Walton v British Leyland UK Ltd, unreported; HCt of UK; 12 July 1978
Western Australia v Watson [1990] WAR 248
Wintle v Conaust (Vic) Pty Ltd [1989] VR 951
Workers' Compensation (Dust Diseases) Board v Kelly (2000) 20 NSWCCR 234
Wren v CSR (1997) 15 NSWCCR 45
Wright v Dunlop Rubber Co Ltd (1972) 13 KIR 255
TABLE OF CONTENTS
The plaintiff
The plaintiff is diagnosed to be suffering mesothelioma
Plaintiff's exposure to asbestos
The defendant
The plaintiff's case in overview
CIV 2412 of 2005
Some matters admitted or clearly established
Time of original construction
Issues
Asbestos
The background exposure to asbestos
Mesothelioma
The detail
The duty of care
Reasonable foreseeability – the home handyman exposure
The "class" of persons to which the plaintiff belonged
The information available
Professor Musk
Dr James Leigh
Professor Henderson
Dr Eva Francis
Available literature
Evidence of Peter Russell
Evidence of Mr Lawless
Defendant's answers to interrogatories
Available literature and constructive knowledge of dangers to health consequential upon exposure to asbestos
Documents from defendant's discovery
What the defendant knew
What the defendant would have learnt upon enquiry
What the defendant would have learnt upon enquiry
Foreseeability and the duty of care – the handyman exposures
Reasonable foreseeability – the bystander exposure
The expert evidence – bystander exposure
Documents from the defendant's discovery – bystander exposure
Defendant's answers to interrogatories – bystander exposure
Duty of care – bystander exposure
Duty of care – the plaintiff
Defendant owed a duty of care
Scope of duty of care
Breach of duty
Warnings and cautions
Advertising
Causation
Development of mesothelioma
Relative risk
Estimates of plaintiff's handyman exposures
Dr Francis
Causation in fact – Legal principles
Analysis of evidence concerning causation
Mr Rodgers' opinion
Admissibility and weight of expert evidence
Assessment of Mr Rodgers' evidence
Evidence of Dr Francis
Evidence of Professor Berry
Evidence of Professor Breslin
Evidence of Professor Fox
Defendant has not discharged evidential onus
Causation in fact – conclusion
Legal causation
Liability – conclusion
Damages
Conclusion
LE MIERE J:
The plaintiff
The plaintiff was born in Surrey in the United Kingdom on 16 August 1927. He grew up in the county of Sussex and attended an old Tudor Grammar School. From around the age of 13 the plaintiff began to play clarinet and saxophone and after leaving school at the age of 16, was employed full time as a musician.
The plaintiff was conscripted by the Royal Air Force and completed around three years of national service in the United Kingdom. The plaintiff then worked for around 14 years as a professional musician, and spent most of his time touring with bands in the United Kingdom, in addition to some tours overseas. From about 1963, the plaintiff worked as a solo musician.
The plaintiff migrated to Perth in 1989 with his wife and two children. In March 1989, the plaintiff and his wife purchased and moved to a house at 10 Trailwood Drive in Woodvale. The plaintiff has lived there ever since. The plaintiff has been semi‑retired since 1992.
The plaintiff is diagnosed to be suffering mesothelioma
During 2004 the plaintiff began to notice symptoms of breathlessness and chest pain. The plaintiff underwent a number of tests before he was admitted to Fremantle Hospital on 11 November 2005 for a biopsy, after which he was informed that he had mesothelioma.
Mesothelioma is an aggressive cancer. The average expectation of survival is about nine months after diagnosis. In February 2006, the plaintiff had an expectation of survival of three to four months. The cause of the plaintiff's mesothelioma is asbestos exposure.
Plaintiff's exposure to asbestos
The only exposure to asbestos that the plaintiff can remember involved working with, or observing others working with, asbestos cement products at his home at 10 Trailwood Drive, Woodvale on four occasions or during four periods.
The first exposure was in or about June 1989, when a local handyman demolished a firewood bunker and pool equipment house at the rear of the plaintiff's property, both of which were covered in flat asbestos sheeting. After dismantling and rebuilding the structures, the handyman left the old asbestos sheets in the plaintiff's garage. Over several weeks, the plaintiff used an axe to break up the sheets and place them in a rubbish bin, sweeping up smaller pieces of asbestos cement in order to dispose of them.
The second exposure was in or around July 1989, when the plaintiff knocked a hole in a corrugated asbestos cement fence in order to feed a hose through the fence, and then disposed of the waste sheeting by hand.
The third exposure was in the early 1990s, when the plaintiff observed a neighbour cut through an asbestos cement fence (which divided the two properties). The plaintiff's neighbour used a power tool to cut along the length of the fence. Following this, the plaintiff engaged a handyman to attach lattice to the top of the asbestos fence. During the time this work was being carried out the plaintiff observed the handyman from a close distance while he used an electric drill to drill through the fencing in order to attach the lattice.
The fourth exposure was approximately 18 months after the plaintiff moved into the house at 10 Trailwood Drive. The plaintiff noticed that a large palm tree at the rear of his property was causing nearby asbestos cement fencing to crack. After having the palm removed, the plaintiff engaged a handyman to replace the broken fence panels. The plaintiff then disposed of the broken panels himself, using the back of an axe to break up the panels into smaller pieces, sweeping up the smaller pieces, and disposing of the waste in a rubbish bin.
The defendant
The defendant was previously named James Hardie & Coy Pty Ltd. It manufactured and sold products containing asbestos, including asbestos cement building products, until the 1980s. I will sometimes refer to the defendant as James Hardie.
The plaintiff's case in overview
The plaintiff says that each of the asbestos cement products which were the source of his exposure to asbestos were manufactured and supplied to the original constructors of the house and other structures by the defendant. The plaintiff's case is that the defendant, as manufacturer and supplier of the products, owes a duty to a class of persons including the plaintiff to take reasonable care to ensure that the plaintiff is not exposed to the risk of injury from exposure to, and the inhalation of, asbestos. The class of persons are handymen who might cut, drill, break up or otherwise deal with the asbestos cement products manufactured by the defendant and bystanders who observe and are in close proximity to such activities. The plaintiff says that the defendant had a duty to warn the plaintiff and other persons dealing with the asbestos cement products or bystanders to such activities of the dangers of dealing with them by affixing suitable warning notices and by advertising the dangers. The plaintiff says that the defendant breached its duty of care to the plaintiff by failing to do so and that that failure caused or contributed to the plaintiff's exposure to asbestos. The plaintiff's case is that his exposure to the defendant's asbestos cement products caused or contributed to him contracting mesothelioma.
CIV 2412 of 2005
This action was commenced by the plaintiff on 31 January 2006. On 4 April 2006 the Court ordered that the action be heard together with the action brought by David Richard Hannell against the defendant in CIV 2412 of 2005 on the basis that the liability issues in this action are similar to the issues in CIV 2412 of 2005. It was common ground that the majority of the expert evidence would be common to both cases and would give rise to similar issues in relation to breach of duty and causation. The two actions were subsequently heard together with the evidence in one action being evidence in the other, so far as it was relevant.
I have delivered separate reasons for decision in this action and in CIV 2412 of 2005 but many of my findings and much of my reasoning is common to both actions.
Some matters admitted or clearly established
In his closing submissions the defendant's senior counsel admitted that the plaintiff suffers pleural mesothelioma. In any event, that was established by the evidence.
The plaintiff pleads that the corrugated asbestos cement fencing sheets and the asbestos cement sheeting used on the pool equipment house and firewood bunker were manufactured and supplied by the defendant to the person who built the fence and other structures. In its closing submissions the defendant conceded that the asbestos cement building products to which the plaintiff was exposed were probably manufactured by it. The plaintiff also led evidence that the defendant was the sole manufacturer of asbestos cement building products in Western Australia between the 1960s and 1980s. I find the totality of the evidence establishes that the asbestos cement products to which the plaintiff was exposed, were manufactured by the defendant.
The defendant's asbestos cement building products were sold through hardware stores and timber yards. I find that the asbestos cement products which were the source of the plaintiff's asbestos exposure were manufactured by the defendant and supplied by the defendant to a person or persons who directly or indirectly supplied those products to the original constructors of the house and fences at 10 Trailwood Drive.
Time of original construction
Plans for the house at 10 Trailwood Drive received council approval on 4 July 1978. A copy of the certificate of title shows that Wilhelmus Van Esch, builder and Julie Margaret Van Esch, secretary, were registered proprietors of the property as at 4 July 1978. Plans for the house at 10 Trailwood Drive also received council approval on 4 July 1978. The plaintiff led evidence that both the firewood bunker and pool equipment house were on the property before the Moss family moved into the house. I accept that evidence. There is further evidence that plaintiff's swimming pool was installed at 10 Trailwood Drive on 24 March 1980. I find that the fence near the plaintiff's pool area, the firewood bunker and pool equipment house were all constructed between the late 1970s and early 1980s.
It was not clear from the evidence at what time the asbestos fence dividing the plaintiff's property from that of the neighbours' was erected. The building plans for the plaintiff's house specify that an 800 mm high brick retaining wall was to be built along the side of the plaintiff's house, in precisely the position where the asbestos fence currently stands. The plaintiff's evidence is that from the ground up, on his side of the fence, there is no visible brickwork. I find that the corrugated asbestos cement fence running along the side of the plaintiff's property was constructed between the late 1970s and early 1980s.
Issues
There are two key liability issues, or groups of issues. The first issues concern the duty of care, if any, owed by the defendant to the plaintiff.
The plaintiff says that the defendant owed him a duty to minimise or prevent the risk of injury from asbestos exposure by taking all steps reasonably open to communicate the danger and the means of avoiding it, to the class of which the plaintiff was a member. In his counsel's written closing submissions the plaintiff described the class of which he was a member as "end users" of the defendant's products. The plaintiff submits that the defendant breached the duty of care it owed to him.
The defendant submits that it did not owe the plaintiff a duty of care with the content postulated by the plaintiff. Secondly, and alternately the defendant submits that it discharged the duty of care which it owed to the class of which the plaintiff was a member.
The second major issues, or groups of issues, are causation issues. The plaintiff submits that the defendant's breach of duty in fact caused him to contract mesothelioma. That is, the mesothelioma suffered by the plaintiff was caused or contributed to by the asbestos exposures resulting from the handyman work, handling or dealing with the asbestos cement building products manufactured and supplied by the defendant, and his bystander exposure. The plaintiff submits that the defendant's breach of duty of care was a legal cause of the plaintiff suffering mesothelioma.
The defendant submits that it did not cause any injury from which the plaintiff suffers. Further, the defendant submits that, in any event, there was no causative breach of any duty of care.
Asbestos
Before referring to the plaintiff's asbestos exposure it is useful to make some brief observations concerning some aspects of the nature and attributes of asbestos.
Asbestos is a naturally occurring mineral, exhibiting a fibrous structural property. There are two classes of asbestos, amphibole asbestos and serpentine asbestos. The difference relates to the characteristics and shape of the fibres: amphibole asbestos has fine, straight fibres; serpentine asbestos has curly or feathery fibres.
There are two commercially viable types of amphibole asbestos: crocidolite, commonly called blue asbestos, and amosite, commonly called brown asbestos. There is only one type of commercially viable serpentine asbestos: chrysotile, commonly called white asbestos. The asbestos cement building products to which the plaintiff was exposed contained chrysotile and amosite.
The asbestos cement building products to which the plaintiff was exposed are a mixture of cement, silica and asbestos. The asbestos comprises in the order of 8 to 15 per cent of the product.
The background exposure to asbestos
An important concept or term is "background exposure". In general background exposure refers to exposure to asbestos in the general environment. The "background risk" is the risk of contracting mesothelioma as a result of "background exposure".
Professor Henderson an expert in the field of asbestos‑related disease, said that background asbestos exposure from the environment at large represents general environmental exposure unrelated to the use of asbestos‑containing materials in the workplace or at home, or from significant point sources of asbestos such as factories. Professor Henderson considers that background exposure includes exposures related to the passive weathering of "in place" asbestos‑containing materials, including asbestos‑roofing materials – with very low or unmeasurably low airborne fibre concentrations – and environmental exposure derived from the brakes of passing automobiles. Professor Henderson excludes from background exposure any exposure arising from active disturbance of any asbestos‑containing materials such as asbestos cement building products or insulation materials.
The absence of a recalled history of asbestos exposure is not the same thing as an absence of exposure. Many cases of seemingly "background" mesothelioma can be attributed to forgotten or unrecognised asbestos exposures. I will sometimes refer to asbestos exposure from the environment at large excluding exposure arising from the use of asbestos‑containing materials in the workplace or at home or from significant point sources of asbestos or any exposure arising from active disturbance of any asbestos‑containing materials as ambient environmental exposure. I will sometimes refer to asbestos exposure arising from the use of asbestos‑containing materials in the workplace or at home or from significant point sources of asbestos or from the active disturbance of asbestos‑containing materials as specific exposure.
In general, the other expert witnesses used the terms "background exposure" and "background risk" consistently with the way in which they were used by Professor Henderson.
In cross‑examination Professor Musk, a respiratory physician and expert in treating asbestos‑related diseases, agreed that the members of the background risk group are the group of mesothelioma sufferers who are unable to recall a specific exposure to asbestos. It was put to Professor Musk that repeated studies over the years had demonstrated that between 15 per cent and 30 per cent of mesothelioma sufferers are unable to recall any particular exposure to asbestos. Professor Musk agreed but added: "But that depends on the quality of the questions and the intensity of the questioning process".
In cross‑examination Professor Musk agreed that he and Dr De Klerk had attempted to calculate a background risk for mesothelioma in Western Australia and that they had expressed the risk as between two and three persons per million persons per annum or between 140 persons per million per lifetime and 210 persons per million per lifetime, assuming a lifetime of 70 years.
I observe that the "background risk" calculated by Professor Musk and Dr De Klerk is not the same thing as the risk of mesothelioma being contracted by persons whose only exposure to asbestos is from ambient environmental exposure. The calculations or estimates of "background risk" by Professor Musk and Dr De Klerk were based on the percentage of recorded mesothelioma sufferers who were unable to recall a specific exposure to asbestos. That cohort includes people who might have suffered specific exposure, that is exposure in excess of ambient environmental exposure but who did not recognise or remember the specific exposure or exposures. The risk of mesothelioma caused by ambient exposure is potentially lower than the background risk calculated by Professor Musk and Dr De Klerk.
Mesothelioma
The plaintiff suffers pleural mesothelioma. The pleura is a membrane lining the lungs and separating the lungs from other organs of the chest. Mesothelioma was first reported in 1960 in relation to the inhalation of asbestos. Knowledge as to the nature of mesothelioma has accumulated gradually over the years since 1960.
Mesothelioma is associated with the inhalation of asbestos. Generally speaking, there are three major issues relating to the connection between mesothelioma and the inhalation of asbestos: the dose issue, the fibre type issues and the lag time issue.
The risk of contracting mesothelioma is related to the dose of the asbestos inhaled. An asbestos fibre must be very small before it can be inhaled and retained in the fine airways of the lung. These tiny fibres are called respirable fibres. A dose may be calculated by counting the concentration of respirable fibres in an atmosphere. This is often expressed in terms of the number of fibres in a millilitre of air and abbreviated to the number of "fibres/ml". Calculations of the cumulative dose of asbestos likely to have been inhaled by an individual may be made by multiplying the concentration of asbestos fibres in an atmosphere by the time that an individual was exposed to that atmosphere. The cumulative dose may then be expressed in terms of the numbers of fibres in a millilitre of air over so many years and abbreviated to the number of "fibres/ml years".
The risk of contracting mesothelioma is directly related to the type of asbestos fibre which was inhaled by the individual. Studies have demonstrated that each fibre type has a different propensity to induce mesothelioma. Crocidolite or blue asbestos, is the most potent. Amosite or brown asbestos, is the median in terms of potency. Chrysotile or white asbestos is the least potent.
The risk of contracting mesothelioma is greatly increased by the expiry of time since the exposure – the lag time. Mesothelioma has a long latency period. Asbestos inhaled within 10 years of the contraction of mesothelioma is considered by relevant experts to be causally irrelevant to the contraction of the disease.
Medical science cannot explain precisely how asbestos causes mesothelioma. There are different theories. Dr James Leigh, an occupational physician, explained one theory, involving multi‑stage carcinogenesis through initiation followed by promotion. Professor Bruce Robinson, a chest physician, considered this theory to be unhelpful and outdated. Professor Robinson advanced an alternative theory based upon a prolonged period of irritation and inflammation arising from the inhaled asbestos fibres. Once an asbestos fibre or fibres have initiated the carcinogenesis it is not known whether the inhalation of additional fibres has any role in the development of mesothelioma.
The detail
The first exposure involved observing a handyman demolish a firewood bunker and pool equipment house on the right boundary side of the plaintiff's property, and disposing of the waste. The plaintiff hired a handyman to demolish and replace both structures in about June 1989. The handyman removed the asbestos cement sheetings from both structures, rebuilt the structures, and left the old cement sheets in the plaintiff's garage. The plaintiff's evidence, which I accept, was that he would chat to the handyman at different periods throughout the day, while the handyman was doing the work.
Over the course of two or three weeks following the handyman's work, the plaintiff broke up the sheets of asbestos cement using an axe and then placed them in a rubbish bin for disposal. The process of cracking the sheets apart gave off dust, which settled on the plaintiff's clothes. The plaintiff swept up the smaller pieces of sheeting (which itself created more dust) and any dust that had settled in the area, putting it all in the rubbish bin. Each time the plaintiff dumped these smaller pieces in the rubbish, a small cloud of dust was given off. The plaintiff did not wet down the asbestos before handling it, and took no other measures to protect himself from the dust given off by this work.
The second exposure took place in about July 1989, when the plaintiff broke a hole through the bottom of a corrugated asbestos fence near the plaintiff's patio. To help drain off dirty water from backwash from the pool, the plaintiff knocked a hole about 20 cm in diameter in the asbestos fence and fed a hose from the pool filter through the opening. The plaintiff crouched down to knock the hole in the fence and also disposed of the pieces of asbestos by hand. This process took about 10 minutes to complete.
The third event involved the plaintiff observing his neighbour using a power tool to cut the top off the corrugated asbestos fence running between their two properties. This event occurred in the early 1990s. The plaintiff's neighbour was clearing their garden, and removed large tree shrubs and a very large section of bougainvillea from the dividing asbestos fence. These plants had grown over the fence, attaching themselves to it, such that as they were pulled away from the fence, pieces of the fence came away too, leaving the top of the fence damaged. The plaintiff's neighbour then used a power tool to cut horizontally through the fence, reducing the height of the fence by about a foot, along about 10 metes of the fence.
The plaintiff was standing within a few metres of the neighbour whilst the neighbour was using the power tool to cut into the asbestos. At times, the plaintiff was trying to talk to his neighbour as the neighbour was going about the cutting. The act of cutting though the fence in this manner gave off a grey dust, "like a fine grey spray that could be seen very easily" and which subsequently settled around the fence area.
Following this event, the plaintiff was concerned about lacking privacy, because the neighbours could then "see right in to our kitchen and back living area". The plaintiff hired a handyman to affix lattice to the top of the dividing asbestos fence. The plaintiff would come out to offer the handyman a cup of tea or sandwich, and would then chat to him while he worked. The plaintiff watched the handyman while the handyman used an electric drill to fix the lattice to the fence. The drilling caused a spray of fine dust from the fence. The plaintiff testified that he would have breathed some of this dust in. He did not take any protective measures to avoid the dust and does not recall the handyman wearing a mask while working. I find that on the balance of probabilities, the plaintiff breathed in dust from the asbestos cement fence while the handyman drilled into the fence.
The fourth exposure to asbestos resulted from the plaintiff again breaking up and disposing of asbestos cement sheeting. In or about 1990, the plaintiff noticed that a large date palm in the garage area had caused two panels of asbestos cement fencing to crack. The crack was wide enough to let the neighbour's dog through to the plaintiff's property. The plaintiff hired a specialist to remove the palm tree, then hired another handyman to replace the two panels. The handyman left behind the unwanted pieces of asbestos cement. As on the earlier occasion, the plaintiff used an axe to break the corrugated asbestos sheets into smaller pieces, and disposed of these in a rubbish bin. The plaintiff swept up the smaller pieces and placed these in a rubbish bin. The plaintiff bent over to break up the panels. The process of breaking up the panels and sweeping was quite dusty, and the plaintiff was breathing in the dust as he worked.
I will sometimes refer to the exposures arising from the plaintiff's observance of handyman work as the bystander exposure. I will sometimes refer to the handling of asbestos actually performed by the plaintiff as the plaintiff's handyman work and to the plaintiff's exposure to asbestos as a result of these activities as the plaintiff's handyman asbestos exposure.
Apart from the exposures to which I have referred the plaintiff does not remember any other exposure to asbestos. The defendant did not plead that the plaintiff had experienced any exposure to asbestos other than the plaintiff's handyman exposures arising from handling the asbestos cement building products to which I have referred, or observing others handling the products.
The expert evidence establishes that the plaintiff, like every other person living in London and Perth, has experienced ambient environmental asbestos exposure.
Senior counsel for the defendant cross‑examined the plaintiff carefully, thoroughly and at times intensely about other domestic or occupational sources of asbestos to which the plaintiff might have been exposed.
Senior counsel questioned the plaintiff about possible earlier exposures to asbestos in England. Senior counsel questioned the plaintiff about the plaintiff's former school in the United Kingdom, which was an old Tudor school. The plaintiff said "[i]t had no asbestos in it at all to my knowledge". Senior counsel examined the plaintiff extensively about hot water systems, insulation, oven mitts, or internal walls made of fibre cement, to which the plaintiff may have come into contact through staying at hotels, music venues or previous residences in England. Senior counsel also questioned the plaintiff about the plaintiff's father's work. The plaintiff said that he had no idea about the possible risks or hazards associated with asbestos before moving to Australia; indeed, before being afflicted with mesothelioma. It was not directly put to the plaintiff that he had been exposed to asbestos prior to arriving in Australia or even that he was unable to say that he had not been exposed to anything which contained asbestos earlier in his life.
I find that the plaintiff experienced ambient environmental exposure to asbestos whilst living in the United Kingdom and Perth. There is no evidence that the plaintiff has experienced any specific exposure, other than the exposure in the course of his bystander exposure or handyman work. The plaintiff may have experienced exposure related to the passive weathering of "in place" asbestos‑containing materials and environmental exposure derived from the brakes of passing automobiles as described by Professor Henderson. Such exposure is part of the ambient environmental exposure. There is no evidence that the plaintiff experienced any specific exposure, other than the exposure in the course of his handyman activities or bystander exposure.
As a result of the plaintiff's response to questioning by senior counsel, I find not only that the plaintiff did not recognise or recall any specific asbestos exposure but on the balance of probabilities the plaintiff did not experience any other specific asbestos exposure.
The duty of care
The general principles concerning the existence of a duty of care are reflected in s 5B(1) of the Civil Liability Act 2002 (WA) which provides that a defendant is not liable for harm caused by the defendant's fault in failing to take precautions against a risk of harm unless the risk was foreseeable (that is, it is a risk of which the defendant knew or ought to have known), the risk was not insignificant, and in the circumstances, a reasonable person in the defendant's position would have taken those precautions. In this case, foreseeability is important.
The plaintiff submitted that the case comes within an established category of cases where judicial decisions establish the existence of a duty of care. The plaintiff says that the category is that of manufacturer or supplier and consumer.
In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 at [29] McHugh J said that it is beyond doubt that a manufacturer of any product owes a duty to a consumer to take reasonable care to prevent the product causing injury or loss to the consumer. In that case the appellant had distributed in Australia canola seed produced in New Zealand. The seed contained a small amount of weed seeds. At the time of the importation no Australian government had declared any of the weeds to be a prohibited weed. The respondent, which conducted a farming business in Western Australia, bought and planted some of the seed which the reseller had bought from the appellant. Shortly after that transaction the Agriculture Department of Western Australia made declarations which required the eradication of the weed seeds. At trial the appellant conceded that it owed a duty of care but did not elaborate upon the scope of the duty of care. On appeal to the High Court the appellant sought to withdraw its concession. Gummow J at [58] said that it was unnecessary to consider whether the appellant should be permitted to withdraw the concession that, as ultimately formulated by the primary Judge, it owed a duty to the consumers of its canola seed to exercise reasonable care not to expose those consumers to a risk of injury of which the appellants knew or ought to have known. His Honour said that the critical question was whether the primary Judge erred in holding that the appellant breached that duty. Kirby J said at [99] that the concepts of duty, scope and breach represent component parts of a unified notion that must be constantly brought back to the touchstone of reasonableness. His Honour observed that the concession of the existence of a duty of care had been made without much clarity as to the scope of the duty being conceded and that the scope of the duty has significance for the related question of breach. At [159] Hayne and Callinan JJ said that as the respondent's case was presented at trial, the critical question was to identify whether the appellant knew or ought to have known that there was a risk of the sort of injury which it was alleged had been suffered – financial loss occasioned by pursuing a course of action recommended by government authorities to guard against the possible emergence of plants which had been declared to be harmful only after the appellant had distributed the seed and the farmers had acquired it. Their Honours said that only if that sort of loss was reasonably foreseeable by the appellant would the duty asserted by the respondent have been engaged.
In Seltsam Pty Ltd v McNeill [2006] NSWCA 158 the plaintiff, a priest, worked with asbestos cement sheeting purchased retail by a relative and manufactured by the defendant and was exposed to asbestos dust and fibres. The work totalled about 12 hours over several days. The plaintiff was diagnosed with mesothelioma. The New South Wales Court of Appeal held that the case was not one of the cases where judicial decisions establish the existence of a duty of care: Bryson J at [33].
In Seltsam v McNeill (supra) the plaintiff was not at any time the purchaser or the owner of the asbestos sheeting. In this case the plaintiff did become the owner of the asbestos cement products. However, I do not consider that that fact relevantly distinguishes this case from Seltsam v McNeill. The New South Wales Court of Appeal found that at the time the priest was exposed to asbestos it was not a known or reasonably foreseeable risk that home handymen and other low‑intensity, casual end users who worked on asbestos cement products as handymen, not in an industrial or other controlled situation, not in the course of employment or any like relationship and not for extended periods, exposed to asbestos dust would suffer mesothelioma. The plaintiff was one of an indeterminate class of people who long after the product had been sold by retail might disturb the asbestos in the product by operations such as sawing, drilling or scraping.
The plaintiff submits that this case is distinguishable from Seltsam v McNeill because the evidence in this case is that in 1989 and 1990 the harm which the plaintiff suffered was a reasonably foreseeable consequence of handyman asbestos exposure whereas in Seltsam v McNeill the New South Wales Court of Appeal held that there was no evidence capable of establishing that there was a foreseeable risk of injury in 1961 to a casual user of asbestos cement sheets as distinct from regular users of asbestos cement sheets from prolonged exposure to dust.
If, as the defendant submits, this case does not come within an established duty of care category then the next question is: was the harm which the plaintiff suffered a reasonably foreseeable result of the defendant's acts or omissions? Furthermore, if the defendant owed to the plaintiff a relevant duty of care it is necessary to consider questions of reasonable foreseeability of harm to the plaintiff from his handyman and bystander asbestos exposure in considering the issue of breach of duty. I turn now to consider whether in 1989 and 1990 there was a reasonable foreseeability of risk of injury from asbestos exposure to the class of persons to which the plaintiff belonged.
The "class" of persons to which the plaintiff belonged
Counsel for the plaintiff submits that the appropriate class may be considered to be the people in this State who have James Hardie products in their home, or alternatively, all end users of the defendant's asbestos cement products.
It is not correct to say simply that the plaintiff falls within the class of home handymen who deal with asbestos cement products by cutting, drilling, sawing or similar activities. The plaintiff was exposed to asbestos not only through dealing directly with asbestos cement sheeting, but by being in the vicinity while other handymen were dealing with the products. I must consider whether it was reasonably foreseeable to the defendant in 1989 that a person with the defendant's asbestos cement products in their home might contract mesothelioma as a result of other people performing work at the home, exposing a person like the plaintiff to dangerous asbestos fibres by the act of observing the actual worker.
In this case, the plaintiff falls into two classes for the purposes of assessing a duty of care. Firstly, the person against whom reasonable foreseeability of risk must be considered is a home handyman or casual end user of the defendant's products; secondly, the plaintiff falls within that class of people who have asbestos products in their home and who might at some point be nearby while other people deal with the products. In either situation, the class of person is someone who does not encounter the product in an industrial or occupational situation. The court must consider whether it was reasonably foreseeable that there was a risk of injury to a member of either class of persons having regard to the information available to the defendant and publicly available in 1989. That requires an examination of the evidence.
Reasonable foreseeability – the home handyman exposure
As part of the "neighbour" principle for determining a duty of care, reasonable foresight is directed to the identity of the plaintiff. In other words, was the plaintiff, either individually or as a member of a class, someone whom the defendant could reasonably foresee would suffer injury as a result of the defendant's conduct? See Donoghue v Stevenson [1932] AC 562.
In Seltsam v McNeill (supra) the New South Wales Court of Appeal held that the trial Judge was in error to treat a foreseeable risk of injury to regular users of asbestos cement sheets from prolonged exposure to dust released by cutting, drilling or sawing such sheets, as establishing a foreseeable risk of injury to a casual user exposed to such dust during one or two days work in the open air. In the course of argument in that case the parties distinguished between workers exposed to heavy levels of asbestos in factory situations on the one hand and end users, that is persons such as carpenters who worked on asbestos cement sheeting on building sites, or other persons who did not work in a factory situation, on the other hand. At [29] Bryson JA said that he did not find end users to be a satisfactory classification because it includes occasional casual users and handymen in the same class as carpenters or other construction workers who work on asbestos cement sheeting, where encounters with the risk of inhalation of dust may take place daily or otherwise very frequently and over extended periods. At [36] Bryson JA said:
"The test of foreseeability is undemanding, but there is no basis for treating it as fictional or nominal, or for equating foreseeability with the limits of the imagination; it must be approached as a test which exists in reality and operates within the limits of the reasonable. It is not real, reasonable or just to adopt one broad class of end users to whom risks of exposure to asbestos were foreseeable. Persons whose exposure to asbestos was reasonably foreseeable include many whose exposure occurred in circumstances altogether different from those of the respondent. Workers who handle asbestos in mining, manufacturing or other industrial operations cannot on a reasonable or just basis be included in the same class as the respondent for purposes of deciding foreseeability. Their exposure was to undiluted asbestos and, as reasonably foreseen, extended to exposure for hours in the course of working days, and to continuous exposure over periods of months or years in a working career. Information which is known or ought to have been known to the appellant with respect to risks to them would be misapplied if it were treated as showing or tending to show some risk of injury relevant to the respondent's position."
At [38] Bryson JA approached the test of foreseeability in this way:
"In considering whether a reasonable person in the appellant's position would foresee that carelessness on his part may be likely to cause injury to the respondent, and whether there was a duty of care to the respondent, the position of the respondent must necessarily be considered at a high level of abstraction; the appellant of course could have no actual knowledge of the respondent himself or of the actual circumstances in which his association with the product exposed him to risk. Stepping from actuality into a higher level of abstraction, the person reasonable foreseeability of risk to whom must be considered is and must remain a home handyman who does not encounter the product in an industrial or commercial continuing situation, who works on the product for a few hours only on one handyman project, not as part of what is otherwise his working life. It would be an error, a legal error to bring to bear considerations relating to the foreseeability of risk of injury to classes of persons with higher degrees of exposure, either in intensity of involvement in working on the product, or in number of occasions and length of time for which the product was worked on, or otherwise with greater intensity. The respondent is not entitled to rely on conduct which was negligent in the sense that there was a breach of a duty of care to some other persons reasonable foreseeability of risk of injury to whom was different to foreseeability related to the respondent. In my opinion it would be a legal error to treat all end‑users of a manufacturer of product uniformly for the purpose of considering the existence of the duty of care to them unless in reasonable foreseeability of risk of injury their circumstances placed them in the same class."
In considering what publicly available information should be considered in relation to the issue of foreseeability Bryson JA said at [40]:
"As a class, these home handymen had characteristically far less exposure to risk, for a far shorter time, than building or other industrial workers who handle and shape asbestos cement sheeting in employment situations. Publicly available information should be considered with care before deciding that it has relevance to the reasonable foreseeability of risk to a class of persons to which the respondent belonged."
The information available
The plaintiff relies on the evidence of eminent experts and in particular Professor Musk, Professor Henderson and Dr Leigh and on the evidence of Dr Francis, an occupational hygienist. The plaintiff also relied on the evidence of former employees of the defendant, Mr Peter Russell, Mr Warwick Gazzard and Mr James Lawless. The defendant further relies upon the defendant's sworn answers to interrogatories, upon a number of documents taken from the defendant's discovery and upon published scientific, medical and other literature.
Professor Musk
Professor Musk is an eminent respiratory physician. He has many years' experience in treating patients with mesothelioma and other asbestos‑related diseases. He has undertaken extensive research and has authored or co‑authored numerous publications concerning asbestos‑related diseases. In 1992 he was made a Member of the Order of Australia for service to respiratory medicine in the field of asbestos and smoking related diseases.
In his written report Professor Musk gave evidence of the development of knowledge in relation to asbestos‑related diseases by reference to learned works and other literature commencing with the 1898 annual report of the UK Chief Inspector of Factories and Workshops.
Professor Musk referred to J C Wagner (proceedings of the Pneumoconiosis Conference, Johannesburg, February 1959, "Some Pathological Aspects of Asbestosis in the Union of South Africa") and to Wagner, Sleggs and Marchand "Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province" (1960) Br J Ind Med 17:260. Professor Musk said that after the 1959 Johannesburg Conference at which the work of Wagner et al was presented, and after its publication in the British Journal of Industrial Medicine in 1960, knowledge of the effects of exposure to asbestos, even in small amounts was well established. It was by then widely accepted that asbestos could cause asbestosis, lung cancer and mesothelioma. It was accepted that small doses, particularly of crocidolite could cause mesothelioma. Professor Musk said that mesotheliomas were reported among British shipyard workers who had received only light or intermittent exposure to asbestos dust and Dr Wagner reported on the mesotheliomas he had found in South Africa in people who had not actually worked with asbestos, but merely lived in the vicinity of asbestos mines and mills.
By 1965 Dr Newhouse had reported on cases of mesothelioma she had found among the relatives of asbestos workers in London. Professor Musk said that owing to the abundance of literature generated on asbestos, asbestos‑related disease and asbestos‑related disease prevention from 1965 on it is difficult to single out important individual documents.
After reviewing articles, learned works, standards, regulations and legislation Professor Musk concluded:
"In my opinion the above material would have led a reasonable employer, occupier or product supplier to have been aware of the necessity to minimise the risk of inhalation of asbestos well before the time period involved in this case, and to warn of the potential dangers. By 1961 the serious dangers to health occasioned by even small exposures should have been known by persons responsible for exposing other persons to asbestos and appropriate warnings and safeguards should have been implemented. By the mid 1960s no person should have been exposed to asbestos, especially blue asbestos, without exposure being reduced to a minimum, together with appropriate warnings of the risks to those exposed. The amounts of asbestos to which persons were being exposed can and should have been quantified during the 1960s as a consequence of these serious dangers and risks to health.
By the 1970s medical researchers in the field, were considering not whether there was a safe level of exposure, which had never been asserted but whether asbestos should be banned completely."
In his letter report of 23 April 2006 (Exhibit M6) Professor Musk said that up until 1978, the year in which the plaintiff's house was constructed, there was extensive knowledge on the hazards of asbestos exposure from both occupational and general environmental sources. Professor Musk said that asbestosis, lung cancer, malignant mesothelioma, benign pleural disease and possibly other forms of cancer had all been described as being increased in people exposed to asbestos with there being evidence of dose‑response relationships and an absence of a safe threshold. From June 1989 through to September 1990 the evidence had further accumulated particularly in relation to dose‑response relationships and the greater toxicity of crocidolite in comparison with amosite and in turn chrysotile. Professor Musk concluded that it was his opinion that the defendant ought to have known of the potential dangers that the level of exposure sustained by the plaintiff was capable of giving rise to asbestos‑related disease in both the mid‑1970s and during the period 1982 to February 1990.
Professor Musk was cross‑examined about a publication of the Australian National Health and Medical Research Council (NH&MRC) described as being the "Code for the Handling of Asbestos by Small Users" and to a report on the health hazards of asbestos published by the NH&MRC in mid‑1981 and other publications. None of the matters put to Professor Musk, nor his response to them, caused him to qualify his opinions nor did they undermine those opinions. I accept the opinions expressed by Professor Musk.
Dr James Leigh
Dr Leigh is an expert consultant occupational physician. He was the head of the Epidemiology and Surveillance Unit and co‑ordinator of the Australian Mesothelioma register from 1988 to 1996. In 1999 he was a consultant to the World Trade Organisation on asbestos issues.
In his report (Exhibit M13) Dr Leigh gave evidence about the development of knowledge concerning the hazards of asbestos and the connection between asbestos exposure and diseases including asbestosis and mesothelioma.
It is Dr Leigh's evidence that by 1970 the dangers of asbestos in causing mesothelioma were well known in Australia.
Dr Leigh says that in 1969 the well known text Hunter's "The Diseases of Occupations" stated the following, in relation to the then draft UK Asbestos Regulations 1968:
"The new regulations apply to factories, some warehouses, ships under construction or in the course of repair. But the Factories Act cannot protect private users. we [sic] know that inhalation of dust from such activities as sawing or sanding material containing asbestos presents the hazard of malignant mesothelioma outside as well as inside industrial situations. It seems not unreasonable, therefore, to insist that materials containing asbestos should be clearly marked to show this, so that adequate precautions can be taken by the users. For instance, amateur handymen sawing materials containing asbestos could easily wear a lightweight dust mask, and either work out of doors or in a well ventilated room."
Dr Leigh says that:
"[I]n 1974, the first major report of the UK Mesothelioma Register (relating to cases diagnosed in 1967 – 1968) described several cases of mesothelioma in insulation workers, building workers, dockers, workers handling asbestos cement products and following hobby exposure incurred when sawing asbestos sheets and drew attention to the possibility of mesothelioma occurring at low dose … No fibre type distinctions were made. Anderson et al … drew attention to the risk of asbestos related disease, including mesothelioma, from household contact."
Dr Leigh said that in 1976 an authoritative review appeared in American Review of Respiratory Diseases that showed that mesothelioma could be caused by low level exposures. Dr Leigh then concluded that the defendant ought to have foreseen the risks of exposure from 1989 onwards.
Dr Leigh said that in 1970 the NH & MRC published the document "Atmospheric Contaminants, Hygiene Standards for Contaminants of the Air of the Workplace" stipulating an occupational standard for asbestos of 4 fibres/ml for chrysotile and amosite asbestos (crocidolite exposure was assumed to be prevented completely). Dr Leigh was cross‑examined on that standard or standards and subsequent NH & MRC publications. I note that the NH & MRC report on the health hazards of asbestos of June 1981 recommended that the average fibre concentration of the air breathed by the worker throughout a working shift should not exceed 1 fibre/ml in the case of chrysotile and amosite asbestos. However, that recommendation follows the following statements:
"Expert evidence suggests that it is not possible to establish a threshold value below which a carcinogenic effect of asbestos cannot be identified, although some recent evidence suggests that such a threshold may exist. The Subcommittee recommends that exposure to asbestos should, in all phases of the asbestos industry, be reduced to the lowest practicable level by the most efficient technology currently available and enforced through …"
The matters put to Dr Leigh in cross‑examination, and his response to them, did not qualify his evidence‑in‑chief concerning the foreseeability of the risk of injury from occasional or intermittent asbestos exposure.
Dr Leigh opined that the defendant ought to have foreseen the risks of exposure, that is the plaintiff's handyman and bystander exposure, from 1989 onwards.
Professor Henderson
Professor Henderson is a pathologist. He is a published expert in the field of asbestos‑related disease. In 1999 he was appointed as an expert adviser to the World Trade Organisation in relation to issues surrounding measures concerning asbestos and asbestos‑containing products.
In his report (Exhibit M11) Professor Henderson said:
"The causal relationship between asbestos and mesothelioma had been well established by the late 1980s and early 1990s, and at that time I was aware that no threshold level of asbestos exposure had been delineated below which there is no risk of mesothelioma above background risk: in other words, I and other authorities were aware by that time that mesothelioma could follow exposures to asbestos that were non‑occupational in character – brief, transient and low‑'dose' – including, for example, the development of mesothelioma from asbestos exposures related to 'handyman' – type work on A‑C sheeting material: the development of mesothelioma from bystander, environmental and neighbourhood‑type exposures had been recorded even earlier."
Professor Henderson was not cross‑examined about those matters.
Dr Eva Francis
Dr Francis is an expert Occupational Hygienist. Dr Francis was initially employed by the Division of Occupational Health with the Health Department of New South Wales and later employed as a Specialist Occupational Hygienist with the New South Wales Workcover Authority. She has over 28 years of practical experience in the field of occupational hygiene, demonstrating a speciality in the area of asbestos from as early as 1971.
Dr Francis provided an opinion as to the availability of information as to knowledge in relation to hazards to health associated with exposure to asbestos. She was not cross‑examined in relation to that opinion. Her opinion is accurately summarised by the plaintiff as follows:
"(a)From the early 1980s to 1990 … asbestos was recognised among occupational health specialists as a carcinogen, with the association of asbestos exposure and lung cancer being reported in medical literature as far back as 1935.
(b)From the early 1980s to 1990 … it was recognised among occupational health specialists that there was no threshold of safe exposure to airborne asbestos for mesothelioma induction.
(c)From the early 1980s to 1990 … it was recognised among occupational health specialists that each dose of asbestos inhaled by a person increased the risk of that person contracting an asbestos related disease, including mesothelioma."
Available literature
Ms Anne Batt was a medical librarian throughout the relevant period. The effect of her evidence was that there were a large number of available indices at the disposal of a librarian if they were required to obtain information from a particular journal or index and if a particular library did not have a copy of a journal or articles there were extensive co‑operating libraries across the world. It may reasonably be concluded that all of the learned works and published studies referred to by Professor Musk, Professor Henderson and Dr Leigh were available to the defendant in the relevant period.
Evidence of Peter Russell
Mr Peter Russell worked for James Hardie between 1948 and 1970. His evidence was tendered in the form of a written statement. He was not cross‑examined.
Mr Russell commenced employment with James Hardie as a laboratory assistant at the Camellia plant in 1948. In approximately 1959 he was promoted to factory superintendent at the insulation factory, where he was in charge of a labour force of approximately 120.
In 1961 Mr Russell became safety engineer and fire officer. He stayed in this position until 1964. During and before this period Mr Russell became increasingly aware of the dangers to health associated with asbestos exposure. During his time as safety officer, Mr Russell undertook research into the effects that asbestos had on those who were exposed to it by seeking out publications on the subject. The literature that Mr Russell read said that exposure to asbestos dust had a tendency toward cancer. The literature was starting to mention mesothelioma but the main emphasis was on asbestosis. The literature that Mr Russell read made it clear that some workers were affected with asbestosis after relatively minimal exposure to asbestos dust.
In the early 1960s Mr Russell became aware of a conference that was to be held in New York in relation to the dangers of asbestos. Mr Russell obtained a copy of the conference papers. The papers comprehensively canvassed the asbestos problem, both in the industry and the environment. The gist of what was in the papers was that there was a worldwide serious concern about the dangers of exposure to asbestos and the welfare of people who had already been exposed.
Some time, in around 1963 or 1964, Mr Russell attended a production meeting where they were discussing dust problems within the factory. The meeting was chaired by the branch manager. Also present were the chief engineer, the company's chief medical officer Dr McCullagh, the personnel officer, the superintendent of the factory and a representative of the engineering side of the factory. Senior staff officers were present from the Camellia plant. Mr Russell raised the issue of the asbestos dust hazard for end‑users of the product. He was concerned that people using asbestos products were relying on James Hardie in relation to their safety.
In mid 1963 at a production meeting it was proposed that James Hardie should extend wet processing to include all the treatment of fibre so that the asbestos would be wet from coming to the factory right through to the sheet coming off the machine. Before that, it had been dry treatment of fibre. Mr Russell said that it was necessary to consider that James Hardie did not store a wet product and did not sell a wet product. He said that considerable sawing of the product was done out in the field and that James Hardie should do some labelling of the product or make end‑users aware of the problems with it. Mr Russell raised the fact that there were many people other than workers within the factory who were being exposed to asbestos dust from the product because they were selling a dry product that was to be sawed. Mr Russell urged a warning to the effect that James Hardie owed a moral responsibility, not only to the workers at Camellia, but also the end users of the product. Mr Russell urged that a written warning should be put on the product. He was conscious of builders who were using power saws to cut dry products. He had done some research and come to the meeting with a pie chart showing the number of people using the product outside of the factory. The chart indicated that the majority of users of the product were not aware of the problems associated with asbestos. Mr Russell referred to the moral responsibility of James Hardie because the people who were using the product regarded James Hardie as the major user and any approach James Hardie took to the asbestos problem affected the response of the users.
On one occasion Mr Russell had discussions with Harry Howorth, who was the supervising building demonstration homes. Mr Russell asked Mr Howorth if he was aware of the problem of asbestos dust to end users of the product. Mr Howorth suggested there was no problem because Hardies sold special hand guillotines that did not produce a lot of dust. These guillotines, however, could only cut flat sheets.
Mr Russell did not see any studies done by anyone else at James Hardie. He was told that it was not a company problem, that it was the end users' problem, not James Hardie's. The company did not want to deal with it.
By 1964 Mr Russell had become distressed by his impotence to do anything about the asbestos problem at the Camellia plant. He decided to take leave to assess his situation. Before taking leave he prepared a detailed memorandum for distribution amongst senior company staff on a confidential basis. The memorandum outlined the development of knowledge concerning the health hazard of asbestos dust exposure. Mr Russell concluded with the observation that asbestos dust was one of the most dangerous of all industrial poisons and that his aim was not to cause alarm but to ensure that James Hardie fully appreciated the possibilities and gave the necessary priority to dust control work.
When Mr Russell returned from leave he took up a position as quality controller in the brake lining division. At some stage in the second half of the 1960s Mr Russell recalls reading papers published in various medical journals on the relationship between asbestos exposure and mesothelioma. One such paper was by Newhouse and Thompson published in the British Journal of Industrial Medicine in 1965. At about the same time Mr Russell became aware that it had been established in America that there was a clear link between asbestos exposure and mesothelioma.
Mr Russell resigned from his employment with James Hardie in 1970.
Evidence of Mr Lawless
Mr Lawless was employed by James Hardie from 1973 to 1988 as an assistant occupational hygienist based at the defendant's factory in Welshpool, Western Australia. He was called by the defendant. Mr Lawless gave evidence that warnings went onto the defendant's products in the 1970s and that it ceased using asbestos in its products in the 1980s.
In cross‑examination Mr Lawless gave evidence that there were a lot of asbestos cement products manufactured by James Hardie in the community. They included products manufactured using crocidolite between 1955 and 1966. And between 1966 and 1984 amosite was used in the products. There were no warnings on the defendant's asbestos cement products until 1979.
Mr Lawless was aware of concerns expressed about the risk to end users of the product that was out in the community but without warning labels. Those concerns were that people would in an uncontrolled manner take to the James Hardie products to cut them in various ways, or to demolish them or to brush and sand them and that in doing those things they would release asbestos fibres into the breathing space.
There were discussions within James Hardie about how to communicate the risks of the use of the unlabelled product that was out in the community to the users or owners of those products. There were various discussions as to how James Hardie could get this information to people. There was a road show put together where they visited hardware stores and invited hardware store owners in to demonstrate the safe methods. There were all sorts of brochures distributed advising how to use the correct tools and equipment.
Before 1988 James Hardie used brochures to communicate the risks of using asbestos cement building materials in the home in such ways as cutting, demolishing or brushing and sanding. The brochures were displayed in hardware stores advertising the products and giving instructions as to how they were to be safely handled and used. Those advertisements did not appear in daily newspapers. James Hardie advertised their products for sale in daily newspapers.
The senior management of James Hardie was aware of concerns such as those expressed in a letter of 6 September 1983 from Alco Hardware Store operator to Dr McNulty, Commissioner of Public Health in Western Australia. The letter is Exhibit H82. The letter says that Alco had for many years distributed a range of asbestos products manufactured by James Hardie and referred to a recent television programme on Channel 2 that argued a direct connection between asbestos products and various forms of cancer contracted by people who were exposed either to the raw material or the end product for varying periods of time. The letter said that Alco was "concerned with any present or potential health risk to either our customers or staff" and sought advice:
"(a)Whether the range of asbestos products manufactured by James Hardie is in your opinion a health hazzard [sic] either to those handling or the end user.
(b)If in your opinion, they do constitute a health hazzard [sic], what action we should take with regard to the handling, warehousing and sale to the public."
Mr Lawless said that there was concern within James Hardie about the possibility of persons cutting, demolishing, brushing and sanding asbestos cement building products out in the community. The concerns were that they would use inappropriate methods to demolish a house or a wall. The standard practice in those days was to take a sledge hammer to it. The standard practice for trimming the top off a Super Six fence was to take a brush grinder to it. James Hardie believed at that time that using a brush grinder was totally inappropriate and if the safe working methods that James Hardie proposed were used the exposure to people would be minimal. The concern was that the cutting or demolishing or the brushing and sanding would release asbestos fibres and be inhaled and that could cause mesothelioma or some asbestos‑related disease, particularly in tradesmen who were doing it all the time.
Defendant's answers to interrogatories
Answers to interrogatories of the plaintiff for the examination of the defendant are in evidence as Exhibit H117. In its answers to interrogatories 3, 4, 5, 6 and 7 the defendant says that throughout the period from 1978 to approximately September 1990 the defendant was aware that home handymen might use its asbestos cement products and that cutting asbestos cement products could release asbestos fibres or dust into the atmosphere which could be inhaled. In answer to interrogatory 11 the defendant said that it first became alerted during the mid‑1940s to the suggestion that the inhalation of asbestos fibres could cause asbestosis but only in circumstances involving the inhalation over a sufficiently lengthy period of time of considerable quantities of asbestos fibres in visible clouds of dust emanating from the handling of raw asbestos in a factory manufacturing asbestos containing products. The defendant says that it first became aware in the mid‑1960s that the inhalation of asbestos fibres could cause mesothelioma but only in circumstances involving the inhalation over a period of time of quantities of asbestos fibres contained in visible clouds of dust emanating from the handling of raw asbestos in a factory manufacturing asbestos containing products.
In answer to interrogatory 73 the defendant admitted that it probably saw extracts from a book entitled "Asbestos Work as a Health Hazard" published by the ABC at about the time it was published in 1978. Chapter 5 of the book is entitled "Asbestos and the Consumer". At p 95 the Executive Officer of the Australian Consumers Association, Mr Ettinger, was asked:
"How serious a problem do you think it is, though? Something like an asbestos stove mat or asbestos cement sheets for building? How much of a risk do you think there is?"
Mr Ettinger replied:
"Well, they're not dangerous unless the fibres are released, so that in a stove mat they might not be for quite some time – but why wait till they are? In using building materials there are many more dangers and of course a lot of people do handyman work around the home and they don't know, for example, that they shouldn't use power tools on them. They don't know that it should be damp. They don't necessarily know that they should vacuum up all the dust before they keep going."
Mr Ettinger was then asked what he suggested were practical precautions to be taken with things like asbestos cement sheets or brake linings. He said:
"They probably are necessary in some applications and they are probably cheaper than other substitute products so in using them we feel that asbestos should be kept damp, that people should work outside and up‑wind where possible. They should use hand tools instead of power tools and that definitely they should clear up the dust very quickly if they have any around when they're cutting them."
Available literature and constructive knowledge of dangers to health consequential upon exposure to asbestos
The plaintiff submits that if the defendant wanted to find out more about the likely hazards posed by exposure to its products, the evidence provided by expert witnesses demonstrate that an extremely large amount of literature concerning the occupational and environmental health hazards of exposure to asbestos dust was available upon enquiry in Australia up to and including the early 1980s and there was a massive amount of literature available upon enquiry concerning the occupational and environmental health hazards of exposure to asbestos dust by 1990.
In the course of the trial the plaintiff tendered a vast amount of material which counsel submitted showed what the defendant knew and could have known about the risk from asbestos exposure to persons in the class to which the plaintiff belonged. The material includes seven lever arch files of documents from the defendant's discovery and a further five lever arch files of available literature and other literature references.
It is not practicable to review all of that material in these reasons for decision. In appendices to the plaintiff's written closing submissions the plaintiff summarised documents from the defendant's discovery demonstrating actual knowledge or awareness of asbestos‑related disease, relevant media publications contained within the defendant's discovery and extracts from medical or scientific literature available to the defendant upon enquiry. I have considered those materials but once again it is not practicable to review all of them in these reasons for decision. The medical experts I have referred to summarised the effect of medical or scientific literature and I will not refer to any particular publications. I will refer to some of the material from the defendant's discovery that is of particular significance.
Documents from defendant's discovery
The plaintiff submits that documents contained within the defendant's discovery demonstrate that the defendant knew that asbestosis, lung cancer and mesothelioma could result from brief and transient and low dose asbestos exposure that was non‑occupational in character such as exposures related to handyman work on asbestos cement building products. I will refer to some of those materials that are of particular significance or which were identified by the plaintiff as being of particular significance.
Exhibit P148 is a James Hardie inter‑house letter of 15 February 1966 from J B Reid, the chairman of James Hardie, to Mr Pysden, the personnel manager. The letter attaches a copy of an article given to Mr Reid by Mr Walker, managing director of Goliath Portland Cement Ltd, Tasmania. Mr Reid says that Mr Walker, "is concerned about this sort of information getting around Australia". The article is written by Dr Alfred Byrne who is described as the newspaper's medical correspondent. The author writes:
"A disquieting 'new' occupational disease capable of killing not only the exposed workman but also perhaps his womenfolk and even people living near his place of work is the subject of intensive behind‑the‑scenes activity by British scientists, experts on industrial health and representatives of at least two Government Ministries."
The disease referred to is mesothelioma. Mr Reid concluded his letter by stating that he had promised to let Mr Walker have information on the recommended treatment against asbestosis and asked Mr Pysden for whatever information was available on this.
Exhibit P149 is a letter from Mr Pysden, personnel manager, to Mr Reid of 16 February 1966 and appears to be in response to Mr Reid's inter‑house letter that is Exhibit P148. In his letter Mr Pysden says:
"The mining and processing of nearly all minerals creates a dust hazard and a health problem. The article is not new – it is merely one of many reports on world studies which have been conducted since 1935 when the association between exposure to dust and carcinoma of the lung, mesothelioma of the pleura, tumour of the bladder and uterus and other fatal complaints, was first recognised. The nucleus is dust particles‑fibre. Four types of asbestos – chrysotile, amosite, crocidolite and anthophylite – have similar effects on the body and it has not been possible to establish that one is more pathogenic than the others. There is no cure for Asbestosis."
Mr Pysden went on to say that the only preventive action is to eliminate the presence of dust. Mr Pysden warned that moving employees around between "dusty" and "clean" jobs was not necessarily effective because some people seem to be affected more readily than others although the reason had not yet been discovered.
Exhibit P152 is a document dated 29 March 1966 signed by Dr S F McCullagh, and entitled "Notes and Comment, Biological Effects of Asbestosis, Annals of the New York Academy of Sciences, Volume 132, pages 1 – 766, 31 December 1965". Dr McCullagh's letter head describes his practice as industrial and preventive medicine. He later became James Hardie's chief medical officer and was titled the company's Federal Medical Officer. Dr McCullagh writes that in the US the accepted safe upper limit is 5 million particles per cubic foot while the British adopt a rather lower level expressed as 4 fibres per millilitre. However, in both the US and the UK it is said that there is no safe upper limit, that all fibre and any fibre is dangerous. In the UK there is reason to believe that in some plants dust is now so well controlled that it no longer is any danger – though it would be years before it can be established that this is so. Dr McCullagh noted that it seems that once a sufficient exposure has occurred it is simply a matter of time before asbestosis develops, one is concerned with time from first exposure rather than with the duration of the exposure, but he could find no certain information as to what is a sufficient exposure. Dr McCullagh said it was fair to say that asbestos fibre is generally held to be associated with and probably the cause of two forms of cancer, bronchogenic carcinoma and mesothelioma (cancer of the pleura, or, less commonly, of the peritoneum in the abdomen). Dr McCullagh noted that it was suggested that even a brief and slight exposure may result in mesothelioma. Dr McCullagh noted that it was suggested that the increasing use of asbestos products, with their slow disintegration and the release of "indestructible" asbestos fibres, was leading to a dangerous pollution of the urban atmosphere throughout the world.
It is open to Dr Francis to give the opinion that the likely exposure to asbestos of the plaintiff when he carried out his handyman activities would have been greater than background exposure derived from the environment at large based upon Dr Francis' personal experience with air sampling and her experience as an occupational hygienist for over 30 years. However, I do not accept Dr Francis' calculations of the plaintiff's cumulative exposure from his handyman activities. I am not satisfied that some of the tests and data relied upon by Dr Francis have been proved so as to form a proper basis for Dr Francis' opinion. I am not satisfied that the activities the subject of the tests and data relied upon by Dr Francis are sufficiently comparable to the handyman or bystander activities carried out by the plaintiff. Furthermore, the cross‑examination of Dr Francis by senior counsel for the defendant causes me to have insufficient confidence in Dr Francis' assumptions and assessments for me to accept her calculations.
I do not accept that the likely or probable cumulative exposure resulting from the plaintiff's handyman activities would have been no greater than the calculations made by Dr Francis. As with Mr Rodgers there are too many assumptions, estimates and variables involved in Dr Francis' calculations and they are based to too great a degree upon unpublished results of tests where there is no evidence of the scientific reliability of those tests or the comparability of the activities the subject of the test and the handyman activities of the plaintiff.
Evidence of Professor Berry
Professor Berry is a consultant biostatistician and epidemiologist. A major part of his work has been in the area of the health hazards of asbestos exposure and he has published many papers in international peer reviewed journals on this topic covering epidemiological studies of mortality.
Professor Berry gave evidence by way of a report of 13 April 2006. In that report Professor Berry concluded that the lifetime risk of mesothelioma due to the plaintiff's exposure during 1989 and 1990, and accepting this exposure as about 0.0002 fibres/ml/years of mixed types with about 50 per sent amphibole component, is very low. Professor Berry noted that the plaintiff was aged over 60 years when this exposure occurred and the latency was only 16 years. Professor Berry then concluded that even taking the risk as 10 times that which may be calculated from an exposure‑response relationship, the risk is only 1.5 per cent of the background risk if the amphibole was crocidolite, and less than this if the amphibole was amosite. That conclusion is based on the estimates of exposure given in Mr Rodgers' report. In his oral evidence Professor Berry was referred to Dr Francis' calculations of the plaintiff's exposure to asbestos from his handyman activities. Professor Berry took from Dr Francis' further report a cumulative exposure of 0.2 fibre per millilitre years and calculated that that would yield a relative risk in the range of 1.3 to 1.4.
Professor Berry's evidence, if accepted, is not sufficient to discharge the evidential burden on the defendant of adducing evidence that the plaintiff's handyman exposure had no effect or that the plaintiff would have suffered mesothelioma even if he had not experienced the handyman exposure. Professor Berry is not able to say that the asbestos fibre or fibres that caused the plaintiff's mesothelioma were not inhaled by the plaintiff in the course of his handyman activities. Professor Berry's evidence, if accepted, is that on a population basis the risk of contracting mesothelioma as a result of "background exposure" is greater, or many times greater, than the risk of contracting mesothelioma from asbestos exposure in the order of the plaintiff's handyman exposure. Professor Berry does not go so far, and his calculations do not permit him to go so far, as to say that the plaintiff's handyman exposure did not materially increase the risk of contracting mesothelioma.
Furthermore, Professor Berry's calculations and opinions are, of course, based in part upon the estimates of exposure given by Mr Rodgers and Dr Francis. For the reasons stated, I do not accept the estimates of exposure given by Mr Rodgers or Dr Francis. For that reason I do not accept Professor Berry's calculations or his opinion based on them.
There is a further independent reason why I do not accept Professor Berry's opinion. Professor Berry's conclusion is based upon a comparison of the lifetime risk of mesothelioma due to the plaintiff's exposure as a home handyman, which is based on the estimates of exposure given by Mr Rodgers or alternatively Dr Francis, and the lifetime risk of mesothelioma due to the "background risk". The "background risk" is discussed by Professor Berry in s 3 of his report. Professor Berry says that a number of mesotheliomas have occurred in Australia with "no apparent asbestos exposure". Importantly, Professor Berry said:
"It is unknown what proportion of these really had an incident of exposure that was not detected by the survey techniques."
Further, after referring to the general background risk rate of 2 per million per year Professor Berry then says that:
"… it is possible that this rate includes some people whose mesothelioma was caused by some unknown specific exposure and a rate of about 1 per million may be appropriate, corresponding to a lifetime risk of 70 per million."
Importantly, Professor Berry concludes his discussion of background risk with this statement:
"Thus for the one sixth of mesothelioma cases in Australia for whom no evidence of even slight exposure was found, it cannot necessarily be concluded that these mesotheliomas were not due to asbestos exposure, but only that they were not due to any specific exposure that was extracted from an occupational and environmental history."
The background risk rate of suffering mesothelioma which Professor Berry compares with the risk of suffering mesothelioma as a result of the plaintiff's handyman exposures is not the risk of suffering mesothelioma without any specific asbestos exposure. Professor Berry does not have a background risk rate derived from mesothelioma sufferers whose mesothelioma is not due to any specific exposure. The background risk rates from which Professor Berry makes his calculations are based upon mesothelioma sufferers who are unable to recall any specific asbestos exposure but who may have experienced a specific asbestos exposure. I have found that the plaintiff has not experienced any specific asbestos exposure other than the handyman and bystander exposures. Accordingly, the background risk rates used by Professor Berry do not apply to the plaintiff.
Evidence of Professor Breslin
Professor Breslin is a consultant thoracic physician. Professor Breslin has not examined the plaintiff but in a report of 15 April 2006 provided an opinion based upon a letter of instructions from the defendant's solicitors, a report of Professor Musk dated 21 February 2006, the statement of claim and the defendant's request for further and better particulars dated 24 March 2006. Professor Breslin estimates the plaintiff's total cumulative exposure in 1989 and 1990 at 0.06 fibre/ml/years which he describes as being very low. Professor Breslin then says that based on the fact that the latent period in the plaintiff is at the lower limit of that usually seen, and the exposure that he had in the activities in his statement of claim is really very low, then he is of the view that it is more probable than not that the plaintiff's exposure in 1989 and 1990 made no significant contribution to the development of his mesothelioma. Professor Breslin says that it is more probable than not that the plaintiff's mesothelioma is due to either previously unidentified asbestos exposure earlier in his life or to environmental exposures in a predisposed individual. Professor Breslin goes on to say that he believes the plaintiff's mesothelioma had no significant contribution to its aetiology from the asbestos exposure that he encountered in the claimed activities or put another way the contribution was de minimis.
However, that conclusion must be seen in the light of Professor Breslin's earlier observation that his estimate of the plaintiff's total lifetime exposure of 0.06 fibre/ml from his 1989 and 1990 exposures is above background community asbestos exposure at the time, albeit "barely above". That is ambiguous. It may mean that the plaintiff's handyman and bystander exposures are greater than community background exposure or it might mean that handyman and bystander exposures together with community background exposure is barely above community background exposure alone and hence that handyman and bystander exposures are less than background exposure. The former, which is the natural meaning, is inconsistent with Professor Breslin's conclusion that the handyman and bystander exposures were not significant in causing or contributing to the plaintiff contracting mesothelioma. If Professor Breslin meant the latter then that conclusion or assumption is inconsistent with the evidence of Professor Musk, Dr Leigh, Professor Robinson and Professor Henderson, whose evidence I accept.
Professor Breslin's evidence is not sufficient to discharge the evidential burden on the defendant of adducing evidence that the plaintiff's handyman exposure had no effect or that the plaintiff would have suffered mesothelioma even if he had not experienced the handyman exposure. Professor Breslin is not able to say that the asbestos fibre or fibres that caused the plaintiff's mesothelioma were not inhaled by the plaintiff in the course of his handyman activities. Professor Breslin's evidence amounts to no more than that he thinks "it is more probable than not that [the plaintiff's] mesothelioma is due to either previously unidentified asbestos exposure earlier in his life or to environmental exposures in a predisposed individual".
The issue is not whether it is more probable than not that the plaintiff's mesothelioma is due to either previously unidentified asbestos exposure earlier in the plaintiff's life or to environmental exposures in a predisposed individual. The issue I am presently addressing is whether or not Professor Breslin's evidence is evidence that the defendant's breach of duty in exposing the plaintiff to asbestos in the course of his handyman activities had no effect or is evidence that the plaintiff would have contracted mesothelioma in any event. Furthermore, as to Professor Breslin's first alternative cause of the plaintiff's mesothelioma, I have found that the plaintiff has not experienced any specific asbestos exposure other than the handyman and bystander exposures.
Professor Breslin's second alternative cause of the plaintiff's mesothelioma is ambient environmental exposure. As I have already noted Professor Breslin earlier said that his estimate of the plaintiff's total exposure from the 1989 and 1990 exposures is above background exposure, albeit barely above. If Professor Breslin means that the plaintiff's 1989 and 1990 exposures are (barely) above background exposure then that is inconsistent with Professor Breslin's conclusion that the 1989 and 1990 exposures were not significant in contributing to the plaintiff's mesothelioma. In any event the finding or assumption that the cumulative exposures in 1989 and 1990 were less than the plaintiff's lifetime background exposure is contrary to the opinions of Professor Musk, Professor Henderson and Dr Leigh that I accept. If Professor Breslin means that the cumulative 1989 and 1990 exposures were less than the plaintiff's cumulative lifetime background exposure then I do not accept that finding or assumption.
I do not accept Professor Breslin's conclusion that the plaintiff's asbestos exposure in 1989 and 1990 made no significant contribution to his mesothelioma.
Professor Breslin prepared a further report of 26 April 2006 after being provided with a copy of the reports of Mr Rodgers and Professor Berry. In that report Professor Breslin said that the new information provided to him did not cause him to change the views expressed in his earlier report of 15 April 2006. There is nothing in Professor Breslin's later report to cause me to change my assessment of the conclusions reached by Professor Breslin in his earlier report.
Evidence of Professor Fox
Professor Fox is a medical oncologist at the Royal Melbourne Hospital.
Professor Fox has not examined the plaintiff but provided a report of 20 April 2006 after reading various papers including reports of Professor Musk and Mr Rodgers. Professor Fox stated his opinion that it is extremely unlikely that the plaintiff's exposure in Australia in 1989 and 1990 "was aetiological in terms of his malignant mesothelioma". It appears from Professor Fox's report and from his cross‑examination that the principal reason for Professor Fox's conclusion is because there was "an extremely short latency period". Professor Fox said that most epidemiological studies do not consider exposure with a latency period less than 20 years to be relevant. The latency period in the plaintiff's case was 14 to 15 years after the putative exposure.
Professor Henderson said in his report of 17 April 2006 that many authorities, himself included, and the Helsinki criteria, specify a minimum latency interval of 10 years. Professor Henderson also said that the latency interval between each of the plaintiff's exposures in 1989 and 1990 and the subsequent symptomatic onset of the plaintiff's mesothelioma, that is 14 to 15 years, although near the low end of the range of latency intervals recorded for an asbestos‑induced mesothelioma, falls into the known range of latency intervals for an asbestos‑induced mesothelioma. Professor Henderson went on to conclude that the plaintiff's 1989 and 1990 exposures were significant for causation of his mesothelioma.
Professor Robinson addressed the issue of latency period in his written evidence Exhibit H16A. In relation to the plaintiff, Professor Robinson said that although the latency period from first exposure was short, being about 15 to 17 years, it was a sufficient period of latency. Professor Robinson said that he had seen a clear history of a 11 year latency described and has had four patients who developed mesothelioma in their 20s and other latencies less than 20 years are described in the literature. Professor Robinson stated that in his opinion the plaintiff's case cannot be excluded as having been caused by the 1989 and 1990 exposures on the basis of the period of latency.
I accept the evidence of Professor Henderson and Professor Robinson in relation to latency periods. I do not accept that the relatively short latency period in the plaintiff's case is a sufficient reason for excluding his 1989 and 1990 exposures as having caused or contributed to the development of the plaintiff's mesothelioma.
In forming his opinion Professor Fox also refers to the plaintiff's 1989 and 1990 exposures as being "extremely light exposure". The extent or magnitude of the plaintiff's 1989 and 1990 exposures was carefully considered by Professor Musk, Dr Leigh, Professor Henderson and Professor Robinson. Each of them concluded that the 1989 and 1990 exposures were greater than background exposure and were a significant causal contribution to the plaintiff's mesothelioma. I accept their evidence and do not accept that the plaintiff's 1989 and 1990 exposures can be excluded as making a causal contribution to his mesothelioma on the basis that the exposures were too light or brief.
For the reasons stated I do not accept Professor Fox's opinion that it is extremely unlikely that the plaintiff's handyman and bystander exposures were "aetiological in terms of his malignant mesothelioma".
Defendant has not discharged evidential onus
The defendant has not discharged the evidential onus upon it to show that its breach of duty had no effect or that the plaintiff would have contracted mesothelioma even if its duty had been performed. I find that the evidence of Professor Musk, Dr Leigh, Professor Robinson and Professor Henderson establishes on the balance of probabilities that the defendant's breach of duty caused, or materially contributed to, the plaintiff developing mesothelioma.
Causation in fact – conclusion
I find that:
1.The defendant breached the duty of care it owed to the plaintiff.
2.That breach of duty increased the risk of the plaintiff contracting mesothelioma.
3.That risk eventuated in that the plaintiff did contract mesothelioma.
4.There is no evidence, or evidence that I accept, that the defendant's breach of duty had no effect or that the plaintiff would have contracted mesothelioma even if the defendant had performed its duty.
Having regard to the legal principles of causation I have discussed earlier I conclude that having made those findings it is to be taken that the defendant's breach of duty caused or materially contributed to the plaintiff contracting mesothelioma. The evidence of Professor Musk, Dr Leigh, Professor Robinson and Professor Henderson, which I accept, establishes on the balance of probabilities that the defendant's breach of duty caused or materially contributed to the plaintiff's mesothelioma.
Legal causation
The defendant submits that if there was a duty to advertise, a breach was not causal, that is the negligence of the defendant was not a cause of the plaintiff's injuries.
In Cole v South Tweed Heads Rugby League Football Club (2004) 217 CLR 469 at [82] Gummow and Hayne JJ said that the critical question in that case was whether the negligence of the defendant was a cause of the plaintiff's injuries. Their Honours said that the duty that must be found to have been broken is a duty to take reasonable care to avoid what did happen, not to avoid "damage" in some abstract and unformed sense.
The defendant says that the plaintiff would not have seen or responded to advertisements.
In his witness statement the plaintiff, whose evidence I accept, said that he never wet down any of the asbestos before he handled it because he did not know that he should have. He did not take any protective measures to avoid the dust and did not know that breathing in the dust was dangerous. The plaintiff said that he did not see any warnings on any of the asbestos cement sheets that were around his home. The plaintiff said that throughout the time of handling the asbestos he was never advised of the risk or danger of doing any work that caused exposure to asbestos. The plaintiff said that if he had known that exposure to asbestos could give rise to a risk of getting a cancer that could kill you he would never have gone near the products and would have paid for someone to take it away. During the time in which he handled the products he never saw any warning labels on any of the sheets.
The plaintiff said that when he was at home he would watch the news and often read the daily newspapers because he was interested in what was happening around the world. He said that if he had seen warnings in the paper or the media he would have taken notice of them and not gone near any asbestos whilst it was being cut and would not have handled it himself in any event. He said that he is good with reading warning labels on things. He said that if he had seen advertisements highlighting the danger of exposure to asbestos he would have taken notice and not gone near the asbestos.
In cross‑examination the plaintiff said that he did not get a daily newspaper delivered daily. He occasionally bought "The West Australian" or "The Sunday Times" or "The Australian".
In cross‑examination the plaintiff was shown a number of articles relating to asbestos risks published in newspapers in 1989 and later. The plaintiff did not recall having seen any of them. The defendant submits that it should be inferred that the plaintiff would not have seen public announcements or advertisements placed in the newspaper by the defendant concerning asbestos risks even if they had been published in newspapers circulating in the Perth area in 1989. I do not accept that argument. There is a significant difference between an announcement or advertisement by the manufacturer of a product that there is a risk of cancer from using the product and that the risk may be avoided or minimised by following certain preventive steps on the one hand and on the other hand information or opinions concerning asbestos risks emanating from some other person.
It may be inferred, and I do infer, that if in or before 1989 the defendant had made public announcements or placed advertisements in a Perth daily or weekly newspaper monthly or more frequently saying that a handyman or casual user of asbestos cement building products ran a risk of contracting mesothelioma and that the risk could be minimised by the taking of certain steps then that information is likely to have come to the attention of a person such as the plaintiff who watched the news, listened to the radio and regularly read a newspaper, even if only weekly. It may be inferred, and I do infer, that it is likely that the information would have come to the attention of the plaintiff either directly or through republication or repetition by other media sources or family, friends, work colleagues or other acquaintances.
All that the defendant did to bring the risk of using the asbestos cement products and preventive steps to minimise the risk to the attention of the public was to place inadequate labels on its products, distribute some literature in hardware stores and conduct a "road show" for store retailers. The steps taken by the defendant were wholly inadequate to bring the risks home to the class of persons to which the plaintiff belonged. The defendant's failure to take those steps was a failure to take reasonable care to avoid what did happen to the plaintiff, that is the exposure to asbestos that the plaintiff experienced in 1989 and 1990 when working on the defendant's asbestos cement building products as described in his evidence and his resulting contracting of mesothelioma.
Liability – conclusion
The plaintiff is entitled to recover from the defendant damages for the defendant's breach of duty that caused, or materially contributed to, the plaintiff contracting mesothelioma.
Damages
The plaintiff and the defendant have agreed damages in the sum of $225,000.
Conclusion
The plaintiff is entitled to judgment in the sum of $225,000.
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