Moss v Amaca Pty Ltd; Hannell v Amaca Pty Ltd
[2007] HCATrans 626
•24 October 2007
[2007] HCATrans 626
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P35 of 2007
B e t w e e n -
DENNIS WALTER JOHN MOSS
Applicant
and
AMACA PTY LTD (FORMERLY JAMES HARDIE & CO PTY LTD)
Respondent
Office of the Registry
Perth No P36 of 2007
B e t w e e n -
PATRICIA MARGARET HANNELL AS EXECUTOR OF THE ESTATE OF DAVID RICHARD HANNELL (DECEASED)
Applicant
and
AMACA PTY LTD (FORMERLY JAMES HARDIE & CO PTY LTD)
Respondent
Applications for special leave to appeal
GLEESON CJ
HAYNE J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT PERTH ON WEDNESDAY, 24 OCTOBER 2007, AT 11.27 AM
Copyright in the High Court of Australia
__________________
MR B.W. WALKER, QC: May it please the Court, I appear with my learned friend, MR J.R.C. GORDON, for the applicant in both matters. (instructed by Slater & Gordon)
MR G.M. WATSON, SC: May it please the Court, I appear with MR A.J. POWER for the respondent in both matters. (instructed by Jarman McKenna and Minter Ellison)
GLEESON CJ: Mr Walker, we will hear full argument in matter No 1, but then is it convenient for us to go on and then hear full argument in matter No 2 and give our decision in them both together, as it were?
MR WALKER: Yes. Another possibility that occurred to us, your Honour, because of the intended allocation in my submissions to the question which is common to both cases, is that I could in considerably less than 40 minutes deal with everything I wanted to say about both cases largely combined with some supplementary distinguishing comments about the Moss Case.
GLEESON CJ: Does that suit you, Mr Watson?
MR WATSON: Yes, it does, your Honour.
GLEESON CJ: All right, we will do it that way, Mr Walker.
MR WALKER: May it please the Court. Would your Honours mind if I used the Hannell Case as the vehicle for the common question because it is the one that received more extended treatment in the Court of Appeal below?
GLEESON CJ: Yes.
MR WALKER: Your Honours, what we seek special leave for in both cases – that is the common question – is against the decision of a jury question and that is what we confront in trying to get special leave. It is the jury question of breach because there is no question here of any misstatement by the courts below, let alone by the Court of Appeal, as to what the test in law of the standard of care was. So we start from the position that there is no doubt about the general principle which was correctly enunciated at all levels below including the majority against us in the Court of Appeal.
We then move to the next mark of the cane against us, namely, that it is a jury question, then, if I may, try to salvage the position. We are after all seeking to vindicate the answer to the jury question given by the learned trial judge that there had been a deficiency in the taking of reasonable care in the circumstances there had been a breach, and I stress, the majority decision against which we seek special leave to appeal held that there was a set of circumstances, including a risk, the nature of which in light of the knowledge held by the defendant that clearly imposed at common law under the law of negligence a duty of care. That is the majority decision and we need not dwell on it.
There was then, of course, the issues of breach held in our favour by the learned trial judge and causation in two aspects also held in our favour by the learned trial judge. They are dealt with somewhat differently in the Court of Appeal but not in ways that are presently material. What is material, in our submission, is the contrast in the ways that the trial judge dealt with the question of breach, which we accept is a jury question, and the way in which the Court of Appeal dealt with it in light of that which we do urge as the cause for special leave in what is otherwise the most ordinary issue in a negligence action, and that is that though the risk is small in the sense that the disease is rare, the risk is one which is extremely well‑established as being caused by the exposure which is the result of the negligence.
So when one talks about small or low risk, a better way to understand that is a rare disease. Thereafter, in terms of the magnitude or nature of the risk, all is surely weighted against the defendant because the risk is not of an inconvenience or of a transient suffering. The risk is of a disease which for all practical purposes is to be regarded as fatal.
It is for those reasons, in our submission, that the jury question came to be answered in these circumstances. The defendant knew sufficient about the possibility that some people would die from being exposed to fibres released as a result of the product which they had designed, made and distributed, all for profit, being used in a way which was in the very intended nature of the commodity, that is, being made into building material intended to be more or less durable in its use in dwellings and around people so that from time to time it would come to be repaired or adapted or even just painted, as your Honours have read in these two cases, thereby being exposed to abrasion of an absolutely ordinary kind as well as breaking up and other ways in which the fibre would be released.
The defendant knew, on findings of fact which would not trouble this Court, would not be the subject of any further appellate attention, the defendant knew of the fact that some people would likely inhale fibres and knew that the inhalation of fibres was capable of causing, with a degree of association which is overwhelming in the science and would not be at issue in this Court, a disease which is invariably fatal.
Your Honours, if one was speaking in a broader context than the common law context of reasonable care, one would think immediately of that which has been legislated, no doubt somewhat imitating some common law directions in this and other jurisdictions, namely, product recall, but there are some products, the harmful outcome of which in their ordinary use, are such as to expose those who have presumably in good faith originally commercialised them to the very considerable expense of withdrawing them from the dangerous position in which they are placed, and as Christmas approaches, one contemplates the killer toy syndrome which now has replaced beer strikes as the seasonal headline.
Your Honours, parliaments legislate for product recall, parliaments legislate for corrective advertising and, in our submission, when one comes to consider that which was the touchstone of the jury question in this case, it is difficult to see how in jury terms it was not perverse for the majority to reach the decision they did in the Court of Appeal.
HAYNE J: Was product recall on the table during the trial and on appeal?
MR WALKER: No, I used those as analogies of the kind of response which was on the table, held by the trial judge, were public announcements, including if necessary by paid commercials, that is, newspaper and the like, to which I will come in more detail in just a moment, and that, as I say, in the context where it is well‑established that there is nothing unreasonable in the broader sense of public policy – unless we think parliament is namby‑pamby about these things – in product recalls, even without lethality as the necessary quality of that which is to be recalled. We are much less than product recall.
We are apprising the public that they have in good faith, innocently and almost certainly ignorantly in nearly every case taken into their house, onto their house and into their garden for work as handymen in the ordinary way of maintaining your own property a substance which could kill them, not which might be harmful to health, as the anodyne stick‑on labels said at some stages in the history of this product, which could kill you. We add to this, of course, particularly with Mr Moss’s case later in time, this being a lethality sufficiently recognised as to make it in the manufacturer’s eyes right to stop manufacturing the product using that substance.
GLEESON CJ: Mr Moss lost his case, did he not, on the basis of a unanimous finding of the Court of Appeal that there was no causation shown?
MR WALKER: Yes, and that from circumstances upon which I have just touched and how I have just described his case, namely, a later time, a smaller period between putative exposure and the use, with great respect, of spurious precision of calculated relative risk equivalent to an odds ratio which was said to be self‑evidently so small as the contribution not to be material.
If I may come back to the differentiating factors in Mr Moss’s case, in a delayed answer to the Chief Justice, yes, that is what differentiates his case from Mr Hannell’s but, in our submission, for the reasons we have put in our written submissions which I will briefly elaborate later, that is no objection to his case as well a suitable vehicle to consider the common point.
Now, the touchstone which in our submission makes the majority’s decision on breach one that this Court, notwithstanding its jury nature, ought to visit is found in the famous passage from Lord Reid in Bolton v Stone that we have quoted by reason of Sir Anthony Mason having referred to it and it is in our paragraph 36 at application book 261 in Hannell. It is, of course, a critical part of the law of negligence, against which we would seek to mount no challenge were special leave to be granted, that it can be, to paraphrase Lord Reid, justifiable to do nothing, that is, not to take any steps to eliminate a risk, depending upon application in the circumstances of the standard of reasonableness. In the ordinary English with which Lord Reid spoke of that situation, the matter is described as follows:
It is justifiable not to take steps to eliminate a real risk if it is small –
I have already said how that is to be understood in this case –
and if the circumstances are such that a reasonable man, careful of the safety of his neighbour would think it right to neglect it.
The evidence in this case included, as your Honours appreciate, advertence by the defendant to the possibility of doing more than they have done in relation to warnings. That is really almost an incidental circumstance but it highlights that this is an ideal vehicle to test whether in this jury question this Court should nonetheless take on the following question. When it is death which is the accepted outcome in a number of cases, that is, it is accepted that that will happen – not may happen, it will happen – in a certain number of cases, small but specifically tied to the exposure which the defendant is now aware in more detail than the general public, how can it be thought right to neglect informing the public on the part of a reasonable manufacturer, James Hardie, careful of the safety of his neighbour in Lord Atkins’ sense of that word?
GLEESON CJ: In the second case, the case of the late Mr Hannell, the breach found by the primary judge was failure to advertise in certain respects, is that right?
MR WALKER: Yes.
GLEESON CJ: Were there not findings by the Court of Appeal about the likelihood that those advertisements would have had any effect on the conduct of the plaintiff?
MR WALKER: Yes. Could I take your Honours to it in order. First at trial, which is the Hannell application book page 57, under the subheading “Advertising”, there is a weighing by his Honour in classic terms, if I may call them that, Shirt’s Case, of the matters necessary to answer that jury question had there been a failure to take reasonable care. There was explicit attention paid to the cost of the advertising. We won on that, and that is not disturbed in the Court of Appeal.
Sir James Hardie did not take the startling forensic course of saying that they have done their budget and it is better than some people have died by reason of taken a risk, ignorant of it, than that they pay the advertising budget. They did not run that and there was evidence to which we have referred in our written submissions of the comparison that one could make between the cost of commercial advertising compared to what they, in any event, paid in order to promote their goods and their profits over the relevant period. So the money was no problem. The money being very much involved in the calculus of reasonableness in most cases of the caution.
Then when we come to paragraph 182 at the foot of page 57, the trial judge refers to the fact that it is not only commercial advertising which was in question. One is reminded of product recalls and corrective advertising for a relatively small amount of money, and one can generate news and news about your own product, and it is not to the point to respond to our learned friend’s references to “crying stinking oysters”. It is not to the point that it might affect the sale of asbestos containing corrugated sheeting, so it might. In fact, we know that that is precisely what happened in due course when there was an appreciation of risk.
It is not to the point because it can hardly be said that a reasonable man careful of the safety of his neighbour would think it right to neglect telling his neighbour that the neighbour might be killed by dealing with that man’s own commodity in the very way one might expect it to be dealt with and think it right to neglect because it might affect the sale of further such examples of that commodity to further people equally ignorant of the same risk.
HAYNE J: But does the proposition then come to this, that you would seek to have us say that because death was the outcome with which we are concerned, the Court of Appeal could not find no breach in doing nothing?
MR WALKER: I do go that far. It is a jury question.
HAYNE J: And that becomes a proposition of law, does it, that it is not open to find no breach doing nothing if death is the risk in question regardless of the likelihood of occurrence?
MR WALKER: I have two answers, yes, and then a more ‑ ‑ ‑
HAYNE J: And, no?
MR WALKER: No, no, not at all, and then a more circumspect one which is to say but that in any event neither for special leave nor for success on an appeal do I need to persuade your Honours that it is a question of law. It is better for me on special leave if I can persuade you it is a matter of law and I give the answer, yes, because, in our submission, it is law in the sense that in challenging a jury verdict on the ground of perversity there are elements of law involved in reaching that extreme conclusion.
HAYNE J: Is it the inevitable outcome, if you got leave and if we allowed the appeal, that a proposition of law would emerge?
MR WALKER: It is not inevitable but it could well emerge and we would be seeking to promote it along these lines, namely, that where death is in question and is not a mere possibility but is an observable and observed certainty for some people and where there is no impracticability about the precaution proposed and there is no obstacle in terms of economic expediency involved, except inadmissible one such as what would it do for the business of selling that very same commodity without a warning, then where that be true then the common law touchstone of reasonableness as explained by Lord Reid cannot produce, do nothing as a reasonable response.
HAYNE J: Can I just pursue it one further step by reference to paragraph 22 of your written outline, page 258, which is where you put what you say is the critical point of the heart of the application?
MR WALKER: Yes.
HAYNE J: The proposition there is founded upon the premise that doing nothing is not an available alternative?
MR WALKER: Yes, it is.
HAYNE J: And if doing nothing is an available alternative, the proposition does not work, does it?
MR WALKER: It would not work in the primary way I have put it, no, your Honour.
HAYNE J: Or at all?
MR WALKER: It might work as a matter of fact visitorial jurisdiction in special leave but that is a different creature. I accept that entirely, your Honour, yes. It might and could work as a visitorial jurisdiction correction by this Court of something that regarded as an egregiously wrong conclusion of fact, even though it be not sufficiently wrong as to be perverse in the sense that I have tried to explain it.
GLEESON CJ: What were the findings of fact in the Supreme Court of Western Australia at first instance and on an appeal as to what would have happened in the case of Mr Hannell had there been this advertising campaign?
MR WALKER: Page 58, the passage to which I had already drawn attention continues, and at the end of paragraph 182 in particular his Honour made clear that, quite apart from paid advertising, the fact that James Hardie was seeking by press release, one would have thought simply by telephoning a journalist to say the public ought to know that doing what you ordinarily do to your eaves and fences with this product of ours might kill them, they would have got presumably lots of free publicity. The judge refers to that and makes the finding, “that it is likely that such announcements would have received widespread publicity.” That sounds very plausible and is not the subject at all of reputation in the Court of Appeal.
In paragraph 184 an argument is noticed in relation to what I will call lack of supposed precision required in the plaintiff’s positing of the kind of advertising necessary and the answer is given in orthodox terms in paragraph 185, that is, the appropriate level of generality at which one should state the question of duty and that which we have referred to in our written submissions concerning what is and is not necessary depending upon particular cases in relation to the precise form of a posited advertisement.
At the foot of page 58 the judge proceeds to make findings about the defendant’s capacity and, in our submission, it is clear that for those reasons there was nothing standing in the way, nothing countervailing, against the proposition that the plaintiff would likely have received a warning which would have produced an avoidance of risk. One finds that, in particular, pulled together at the end of his Honour’s judgment at pages 98 and 99 in paragraph 327. Having referred to what the defendant might have achieved by publicity in paragraph 327 starting at the foot of 98 his Honour held that:
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.
Thus the next two paragraphs causation was found. There is not refutation of those aspects of causation in relation to publicity and how that could have avoided the risk to the plaintiff in the Court of Appeal. May I take your Honours to page 225 in the majority reasons starting at paragraph 363. I pass over given the time constraints the question of the labelling on the product upon which we rely on what we have written, but at paragraph 363 and following there is the reference to the mass media advertising. There is reference to findings at the foot of paragraph 363 which, of course, make very plausible that had the plaintiff been told something that he did not know he would have acted differently.
Then paragraph 364 introduces the question which in 365 is, as the trial judge himself had held, to be decided without hindsight. First, their Honours refer to “assessing reasonableness . . . by reference to all members in the class, present and future.” In itself that is not wrong, with respect, but it is, one can see, in the introduction of the error that comes to be committed. Then “would have to apply to all geographic areas”, well, it is mass media, it has its own distribution.
Then under paragraph 366 their Honours conclude adversely to the plaintiff as follows, “The frequency and scope of the advertisements that would be necessary to reach the majority of the members of the class”. There their Honours have said, the majority, that may or may not be right in terms of being an appropriate finding of fact concerning reasonableness. It certainly excludes the notion that unless you can show that your warning is going to be discovered, heard and attended to by everyone, then that is a reason not to warn anyone.
They then say that it would, “communicate a warning of a kind that is disproportionate to the very low risk of harm involved”, but in their very same reasons about the warnings they had pointed out that it was not enough to say that harm to health may result. There is nothing disproportionate, surely, about the whole public knowing that you do not dive into a shark pool, you do not run around if you are a child with sharp knives and if you are a homeowner, you do not set about your asbestos fencing or eaves with anything that may abrade it. Being eaten by sharks, impaling yourself on a kitchen knife are rare events but they are in the nature of things about which it is good that everybody knows and the idea of going softly, softly about the warnings in those first two cases because it happens rarely is not one that is acceptable as a matter of reasonableness.
GLEESON CJ: Rightly or wrongly, I understood the essence of their reasoning to be in that sentence beginning with the word “Mass”. They say:
Mass media advertising of a very low risk of serious harm, particularly having regard to the myriad of sources of such risks to which people are exposed on a daily basis –
was not reasonably required.
MR WALKER: Your Honour, in our submission, there are a number of errors in that. Before we come to that sentence, it can be seen that having moved from majority of members in the first sentence of that paragraph, they say, “Further, it would be impossible to reach all members of the class”. That cannot be a reason not to try to reach some. Then they say that “advertising of a very low risk of serious harm” and they are referring to something generically, not just asbestos in your fence and your eaves and your walls, your ceilings. They are talking about, “the myriad of sources of such risks to which people are exposed on a daily basis”. This is informing people of another risk of which they ought to be aware.
It is not a risk inherent of being alive, it is not the risk of sudden heart attacks if you exercise too much or perhaps if you do not exercise enough, it is not the risk of what might happen if you step off the pedestrian crossing while the light is red. These are things which are well‑known and which answer the description of a myriad of risks, a low risk of serious harm to which people are exposed.
That was an entirely irrelevant matter to introduce into the calculus which had to be applied to the position of the defendant who had made money out of commercialising the commodity, which it had come to know carried this low incidence risk of death. When I say “low incidence”, it is not a small possibility of it occurring. It is the certainty of it occurring to a mercifully relatively small amount of people compared to the population of home dwellers, still many people.
In our submission, that was, as it were, an axiom or generalised approach that their Honours adopted at page 366 which swerved radically away from the plaintiff, defendant kind of risk inquiry which Shirt’s Case requires and which, in the ordinary words of Lord Reid in Bolton v Stone, provide by way of an evocative touchstone.
It is reasonable and practicable, in our submission, as a matter of the common law to utter a warning not about the myriad of low risks of serious harm that people face, that would be absurd, but to add to their information, they already knowing about the myriad, something which it has been held this plaintiff and people in his position were not likely to have known.
This is not a case where it was held that the plaintiff was, as it were, part of a freakish minority unaware that sanding down your eaves made out of this material could kill you. It is for those reasons, in our submission, that when one compares the entirely orthodox, classical approach of the trial judge, the pages I have taken you, with the errors with which paragraph 366 is replete, that, in our submission, this case does present as an opportunity for the Court to ensure that in relation to something which is likely to increase, not decrease, infrequency of litigation, that there is a principled approach to the balancing of the risk to the plaintiff and the people in the class of which the plaintiff is a member and the burden or impediment, as a matter of practicability, on the defendant if they were to provide the information which they had. It is not to look for information, it is to provide the information with the manufacturer had about the risks of such conduct.
In our submission, it would be principled to introduce, as we have said in writing and in my answer this morning to Justice Hayne, it would be principled for the Court to introduce the extra component added to what is otherwise an ordinary jury question in negligence of death being certain by reason of the unwarned exposure continuing. That is the great difference between the rhetoric of low risk of serious harm and the facts of this case presented neatly and completely as a vehicle to test the proposition, whether it can possibly be the response of a reasonable man, careful of the safety of his neighbour, to think it right to neglect the certainty that some people will die from exposure which reasonable and practical steps could be taken to reduce or avoid.
The only way to read the rejection of this being reasonable or practicable in paragraph 366 is according to their Honours’ own reasons and their Honours’ own reasons refer to a warning being disproportionate. It is difficult, with respect, to understand why generalised knowledge about the certainty of death for some people from an exposure would be disproportionate. Certainly one can and should reject the notion that it would be disproportionate because it might spoil the commercialising of the commodity or damage the reputation of the company.
Second, there is the somewhat contradictory reference to the notion of being impossible to reach all members of the class. Logically, it cannot be acceptable to treat warnings, whether they be expressed in writing or in any other graphical form, where there is always the possibility of non‑comprehension or non‑noticing as being unnecessary as a matter of reasonable care because they cannot be perfectly effective. That is the fallacy, in our submission, which need only be stated to be spotted.
Finally, the sentence to which the Chief Justice drew attention which introduced the entirely irrelevant myriad of sources of low risks of serious harm, many of which are to be found in the ordinary household, and have nothing to do whatever with the jury judgment and what was reasonable for this defendant to do upon it coming to know of the dangers that the commodity it had sold to people posed to their lives.
GLEESON CJ: Is there anybody in the community who is not exposed to asbestos?
MR WALKER: Probably not in urban settings, your Honour. I am not suggesting that the countryside is clean, there would be many places in the country where it was as bad as urban sites but, in answer to the so-called background risk that your Honours have seen references to in the reasons, I think all members of an urban population are exposed.
GLEESON CJ: What about brake linings in cars, for example?
MR WALKER: Yes and not only in cars, of course. Your Honours, that is the reason why, in our submission, there ought to be a grant of special leave. Your Honours will have seen that there was a reference by their Honours in the majority to the reasons of the Chief Justice, that is at application book 225, paragraph 362, which is a reference to the Chief Justice’s reasons concerning the labelling of product. In particular, at application book 187 and 188 there is the answer to the trial judge’s finding by the Chief Justice, concurred in by his colleagues, to the effect that though it was reasonable to require the affixing of labels, the failure to do so did not cause Mr Hannell’s death because they would not have been visible to him at the time he commenced working on the asbestos cement products.
I am bound to say, though it does not sound like special leave on its own, that for the reasons we have put in written submissions, that was in error by the Chief Justice and the majority in comparing because there were just simply not sufficient facts to find that Mr Hannell was not, as we would submit that the material supports, the first owner. In any event, in our submission, that is no answer to the question of advertising which is the main point in our application for special leave in both cases.
Your Honours, Mr Moss’s case, as the Chief Justice has noted, is to be differentiated and we have sought to address the differentiation in the passage, in our written submissions, starting in his application book page 175 with paragraph 21 and in particular paragraph 26. Your Honours have seen that and I do not wish simply, as it were, to read it. May I make the following points by way of emphasis.
This was a case where the two cases were yoked together as so‑called test cases. By the time the reasons came to delivered in the Court of Appeal the similarity on what is the common point in our applications for special leave is obvious from the way in which the Moss Case calls in aid the findings in the Hannell Case concerning advertising as not being required in order to reach a standard of reasonable care.
It is, for the reasons we have put in writing however, a further instance of appellate error in Mr Moss’s case that there was the added ground for his failure in the Court of Appeal that the level of exposure was held by their Honours by reason of some figures which necessarily cannot be precise, because there are no precise measurements of exposure and estimates vary widely, by reference to those figures with that spurious precision it was held using epidemiological and statistical reasoning that it was not likely that that exposure had materially contributed to his disease.
As we have put in our written submissions, the difficulty with that approach, which is to be found at page 152 of Mr Moss’s application book
starting at the foot of that page with paragraph 128 which continues to the next page, the difficulty is that it departs from what is, with great respect, the correct and learned discussion of an application of the proper principles established in this Court concerning attribution of a causal link where there are multiple and concurrent causes, where it is not possible to say, given what science says concerning the possibility of very low doses producing the disease, it is not possible to say ever that these fibres did not contribute and that the resort to epidemiology and statistics will lead to the false approach of saying, for example, that somebody who does not achieve greater than a 50 percent elevation of risk over and above the general population must fail which would be absurd and has never been the law in this country.
It is for those reasons that Mr Moss’s case is one which has an extra error, on its own, true. That is an error which does not have the qualities of the first point we have put where we are trying to persuade this Court that the certainty of death for some people removes the possibility of a defendant doing nothing in the absence of evidence and successful argument about expediency, utility and cost of a kind which might make it necessary to accept some deaths as certainties such as applies in the use of privately driven motor cars on public roads.
On the other hand, this point in relation to Mr Moss does raise the question of the correctness of the approach that we urge was correctly taken in Hannell’s Case to the attribution of cause where there are multiple and concurrent causes. We are in the rather peculiar position of saying, in the set of reasons which contains this Bench’s approach to that matter of law, they were right, with great respect, and our complain in Moss is, and it should have carried through consistently for Mr Moss’s case, as we have put in our written submission.
There is more than an element of the visitorial jurisdiction in that second point but, in our submission, given the fraught nature of these cases and the likelihood that multiple and concurrent causes in such matters of exposure to a substance to which all of us have been exposed by way of so‑called background, it serves a second useful purpose were this Court to take on Mr Moss’s case as well. May it please your Honours.
GLEESON CJ: Thank you, Mr Walker. Yes, Mr Watson.
MR WATSON: These applications should fail upon the basis of the sheer unlikelihood that the applicants could succeed in overturning the factual findings on breach in the Court of Appeal. Mr Walker described it as a jury question and at one stage went so far as to suggest that the decision in the Court of Appeal may have been perverse. With respect, not so. I will show your Honours some matters in a moment but those findings were ones which were not only open but were well supported by the evidence and, although this is not a complete answer to the perversity proposition, they were unanimous in the Court of Appeal.
There were only, on this question of breach, two limbs to the case put by the applicants at trial. The first limb was whether or not there should have been labels on the building products. The second was, I will call it if I may, the mass media campaign. May I clear up something. It is my distinct recollection, as I stand here having appeared in the trial, that the question of product recall was specifically disavowed in the opening.
GLEESON CJ: It is not easy to recall building materials that have been put in buildings.
MR WATSON: No, and that was the reason for it. I will also come to the question about whether or not there was a question which related to the ability of the defendant to have stopped producing building products without asbestos in it, but could I separate the two points. The warnings on the products, that was the subject of findings which may here have been concurrent between the trial court and the appeal court.
GLEESON CJ: I thought Mr Walker put the weight of his argument on the second aspect, that is the mass media or the media information campaign, if I can use that expression.
MR WATSON: He did. I do not want to let the issue of the warnings on the products slide but I will come back to that if it attracts your Honours’ interests. In relation to the media campaign, there were two answers to the suggested breach and again these were unanimous findings of the Court of Appeal. The first is that in the joint judgment and the Chief Justice’s judgment it was found that it was just simply unnecessary given the size or magnitude of the risk. The second reason why it failed, something raised by the Chief Justice here today, is that each of the judges on appeal found that on the facts such media campaign would not have come to the attention of either Mr Hannell or Mr Moss.
The way in which the appeal court resolved the first of those two questions about a reasonable response to a risk involved an ordinary application of Wyong v Shirt and there was nothing exceptional about it. It has been raised as a question of fact. I should show your Honours where this was dealt with in the application book. Could I take your Honours to Hannell at page 221. This is the finding which was made directly against us in the appeal court by the joint judges. At 346 and 347 there are findings which at each point introduce the idea of foreseeability as being dependent upon a risk which was extremely low.
Their Honours seemed at one stage, if your Honours then turn to page 224, paragraph 358, to be attracted to the idea that certain high level governmental documents had suggested that the risk was so low that it was able to be described as “negligible”. At page 223, and this runs from paragraph 355 right through to 362, their Honours in the joint judgment described a perfectly orthodox application of Wyong v Shirt considerations to the effects including the extremely low or perhaps even negligible risk. It is well‑reasoned and it was open on the evidence and it may well be that it is a classical jury question.
The Chief Justice separately came to the same view at page 270 at paragraph 294 and that was after a long discussion identifying the nature of the risk and the extent of the risk and all of the relevant technical information relating to the risk. May I say something in that context about that projected media campaign. As your Honours know, the way in which the applicants put their case was that an advertisement in a single Perth newspaper would cost such and such sum of money at a particular point in time. We have said, and we said at trial, that that is to approach it with hindsight and far too narrowly, the sort of thing which your Honour, Justice Hayne has pointed out in cases commencing, for example, with Romeo.
There was no other evidence which would permit some feel for what might be involved in a media campaign. For example, there was one newspaper, no other newspaper, no information as to how many daily newspapers were available in the country towns of Western Australia, Geraldton or Albany or, for that matter, in South Australia or New South Wales or whether or not it would be necessary to have it in several languages, maybe different languages in different cities in different States or whether, as part of a mass media campaign, it should have included radio and television and what that would have cost.
It is in this context that there is something about the applicant’s case that we need to correct. It is said that the defendants did nothing. With respect, that is wrong and it is the subject of findings. May I just remind your Honours all of the evidence pointed to the conclusion that the risk was extremely low amongst tradespeople, builders and carpenters or perhaps professional handymen. The class into which Mr Hannell fell was of home handyman. The class into which Mr Moss fell was of a man who did not like handyman work at all and deliberately retained a professional handyman to do the work.
The question was, what is the best way, if knowledge emerges about a risk, even an extremely low risk, what is the best way to communicate that and there was evidence that what the defendant did was to try to attract the attention of the class most at risk, the builders, the carpenters and the tradesmen.
Could I take your Honours in the Hannell book to page 54. This is the primary judgment of course. In paragraph 167 the trial judge made findings on the evidence of a Mr Gazzard that in the 1970s the defendant “included warnings in literature which was placed in literature racks in hardware and other outlets”, that there was very little literature in relation to some products and more in relation to others, “warning labels were placed on the products” from about that time. But paragraph 168 is critical:
There was also evidence about a “road show” in which safe handling methods were demonstrated. Mr Lawless –
another former employee of the defendant –
said that James Hardie put a road show together where people would visit hardware stores and demonstrate to hardware store owners the safe methods [of use].
There were brochures and there were means of communicating the risk. In other words, something was done and it was a sensible thing, if one thinks about it, to try to attract the attention of the people more at risk. For example, in this case the evidence is silent on the fact whether the professional handyman employed by Mr Moss actually knew about these risks and was happy to accept them himself and happy to inflict them upon poor Mr Moss.
GLEESON CJ: Mr Watson, what was the substance of the information communicated that is referred to in the last sentence of paragraph 168? Was it that you should wear masks when you handling the product or that you should not touch it or what, you should leave it where it was forever, what?
MR WATSON: No. I do this from recollection. I believe that it said that in handling the boards you should hand tools not power tools, you should attempt to take measures to keep dust down, that you should dampen any debris which was created by it. I recall it said that you should do the work outdoors not indoors. It did not go so far as to recommend masks, however, to my recollection. I think it might have also added that once in place there was no known risk from the asbestos in the product, in other words, if it is already in a ceiling or in a wall.
GLEESON CJ: As long as you leave it alone.
MR WATSON: If you leave it alone. The same questions that we asked in the trial court could be asked here about the time at which any such media campaign should have started. I think it must be suggested on the evidence that it had to start from at least 1979 but nobody has ever told us whether it should, as a matter of discharging our duty, have commenced before 1979.
HAYNE J: Yes, it was a piece of litigation, Mr Watson, it was not royal commission.
MR WATSON: That is true, your Honour.
HAYNE J: The question is whether at the critical time.
MR WATSON: The critical times here were unusual insofar as Mr Hannell had come to Australia from England in 1981. Mr Hannell was exposed in 1983, 1985 and 1990. Mr Moss had only come to Australia in 1989 and his only exposures occurred in 1989 and sometime in the early 1990s. In other words, we know at least from the piece of litigation that it had been an extensive campaign but that has to be taken into account in terms of this reasonableness.
Your Honours will have seen that each of the judges in the appeal court referred to the very extensive coverage of asbestos risks which were appearing in relevant newspapers in Western Australia at the relevant time. Because of things that we saw in my learned friend’s submissions, we took the precaution of bringing down a copy of the exhibit which was placed into evidence in the trial court of the many newspaper articles which had appeared, sometimes on the front page, of the leading Perth newspapers relating to asbestos risks during a time that Mr Hannell and Mr Moss were in Australia and yet still they did not know of these risks.
May I just show your Honours the critical findings about the unlikelihood of a media campaign coming to the attention of these gentlemen. In the Hannell book it is at page 189. This is the Chief Justice and at paragraph 234 the Chief Justice in fact corrected the trial judge to suggest that the evidence could not sustain a conclusion that would have come to Mr Hannell’s attention. In the joint judgment, it is at page 225 ‑ ‑ ‑
GLEESON CJ: It is said in paragraph 234, “Mr Hannell was not aware that the products upon which he was working contained asbestos.”
MR WATSON: Yes.
GLEESON CJ: In what sense was he working on these products?
MR WATSON: He had a strange fence in his backyard which was described as having a weave through it and it had some planks.
GLEESON CJ: He was dismantling a fence.
MR WATSON: He dismantled it. He then reassembled it in a different configuration and painted it, then he also worked on some eaves and he sanded those back, first with a wire brush and then with some sandpaper and dust may have been created which fell down into his face.
GLEESON CJ: But is the Chief Justice saying here that Mr Hannell did not know that the fence that he was rebuilding or the eaves that he was dealing with had asbestos in them?
MR WATSON: Yes, that is what the Chief Justice is saying and that was clearly supported by the evidence. Mr Hannell remained ignorant of the fact that this product some people called fibro was fibro or something which contained asbestos. But the next step was, even if it did, it would have meant nothing to Mr Hannell.
In the joint judgment, it is at page 225, in particular paragraph 363. Could I say to your Honours in the Moss Case it was even more explicit. Mr Moss was a very accomplished jazz musician and he was not interested in handyman work at all and the finding there is in the judgment of the Chief Justice at page 149 of the Moss book between paragraphs 114 and 117.
HAYNE J: Does it follow from these passages that you are taking us to that you would accept that what you presently have in these two cases are decisions on facts which provide no precedential value at all?
MR WATSON: That is our primary assertion, your Honour.
HAYNE J: In fact, these decisions are not precedents, they are not test cases, they are fact specific, is that right?
MR WATSON: Yes. Your Honours, may I just add one remark in relation to Mr Moss’s case. Although it is suggested now that the use of mathematics or epidemiology or even biostatistics is spurious, my recollection of the trial was that each of the experts who had been asked to comment upon such things saw a certain validity, subject within limits, to such a process and calculations were made. In our written submissions we said that Mr Moss’s case can be determined on the fact that causation is so unlikely and we have pointed to the fact that at most on those statistical calculations the risk was increased by 0.6 percent. In fact, we got that wrong.
The risk in Mr Moss’s case as compared to the ordinary background risk, which all people share because of the ubiquitous asbestos in our atmosphere, was enhanced by the small exposure of asbestos that he had while at home by, on those calculations, no more than 0.06 percent.
Mr Moss’s case could not succeed on the issue of causation on any view, we would respectfully submit. Unless your Honours were attracted to the argument about the placement of permanent warnings on boards, which would forever be able to be seen, that is what I was going to say ‑ ‑ ‑
GLEESON CJ: There is one aspect of that on which you might care to comment. It was Mr Hannell, was it not, of whom it was said that he just did not know that what he was dealing with contained asbestos. So presumably the argument was that all the warnings in the world about the dangers of asbestos would not have had an impact on somebody who did not know that what he was dealing with was asbestos.
MR WATSON: That is correct, except ‑ ‑ ‑
GLEESON CJ: If that is right, would that be a reason for attaching significance to some kind of labelling which indicated that products did have asbestos in them?
MR WATSON: Could I just answer the question by saying, that finding about the ignorance of the presence of asbestos in the product applied equally to Mr Hannell and to Mr Moss. Now, to answer the question, perhaps it would but it still could not overcome the practicality of the case with which we deal here. The boards, it says in my learned friend’s submissions, were manufactured in 1979 but the evidence was that it was probably some time in the late 1970s. There was a risk recognised at that particular time and in relation to this kind of permanent labelling one has to look back in time as to what would have been reasonable then.
In terms of the labelling, the evidence was that this was accepted in the trial court and it is mentioned by each of the judgments in the Court of Appeal, was that such labelling as ever went onto the boards tended to be on the back of the boards. So if one is putting up a ceiling it would not be seen, or if it was in a fence it would be between the overlapping ends of the fence so that it would be disguised. Why? Because it would otherwise be unsightly.
In the applicant’s submission here now they say that somehow or another by means not explored a permanent marking had to figure on the boards which could not be overcome by a building process such as reversing the face of the board or ripping off the sticker or painting over it
or placing linoleum over it, some means had to be effected, and this is before 1979 with the recognised risks, by the defendant to make a permanent warning. The words, they say, had to include “danger” followed by an exclamation mark and “kill” followed by an exclamation mark.
Presumably, because the boards are cut to size, this would have to be somehow marked on the board more than once to counter the fact that the warning on that particular board could be trimmed off. This would be forever on the outside of a house, I suppose, as one walked to the front door, the words in capitals “danger” and/or “kill” would be there. That product would never have sold.
In the trial court that case, that is, Amaca should not have used asbestos in the product, was not put. I can tell your Honours from here, I had in the conduct of the case anticipated it might be put. We marshalled evidence to answer such a case if it was necessary. There was evidence from an historian, Dr Pickett. There was evidence from the engineer at James Hardie who spoke of the troubles that they had trying to find any alternative to asbestos and the consequences of them making a snap decision. That was case was held below, that evidence was not called as a consequence. May it please the Court.
GLEESON CJ: Thank you, Mr Watson. Yes, Mr Walker.
MR WALKER: Your Honours, on that last point, the whole point about putting a warning on a product either at the point of it being commercialised or in order that it may be the subject of precautions by users to whom a duty of care is owed, includes primarily, principally, the possibility that those who read or learn the warning will then shape their conduct accordingly, and that common law has never been, with respect, so brutal to values of life and limb and so tender of commerce that it would say a warning ceases to be reasonably required at the point where the freedom of action that it might encourage by those learning the warning would include not buying the product.
One might decide as between a product that needs a warning and a product that does not need a warning to prefer the one that does not need the warning even if it is not as exciting. In our submission, what my learned friend crept into in that part of his argument, as he did at the first part of his argument where he emphasised the extremely low or negligible quantitation of the risk, is to go back to the issue of duty that they lost. The nature of this risk, whether it be extremely low, negligible, small, however one calls it, was still such as to passing through the lens of foreseeability and that kind of reasonableness which the duty question calls up, they had already lost that question and the risk was such as to lead to an imposition of a duty of care.
The question was, being under an obligation to take reasonable care was doing nothing in the way of advertising the appropriate response. Now, it is doing nothing relevantly because the more my learned friend talked about warning labels, the more it became obvious that James Hardie appreciated that they would not be available to subsequent users and these, after all, is not material which in the nature of things one would expect to remain in situ and undisturbed for the rest of time. That would be an appropriate subject of warning to people, do not do to this substance what you might do to another building substance such as a paling fence, cut it, sand it, et cetera.
It is for those reasons, in our submission, that what is put concerning the warning labels is no answer to an application for special leave and, indeed, would not be an answer to an appeal. Paragraph 362 in the Hannell book at page 225, to which my learned friend took you, the majority there held that the first kind of warnings were inadequate and upheld the trial judge in that regard. That is because they were too bland as to the nature of the adverse outcome.
The second ones where they disagreed with the trial judge did use the word “cancer”. It is only a difference of fact as to whether that is sufficiently good because of course not all cancers are fatal, however, the word has a popular evocation which obviously appealed to the majority as being adequate. The trial judge in the Hannell book at pages 53 to 55 had made findings which were not the subject of overturning by the majority in the Court of Appeal. They disagreed concerning two aspects, one, adequacy, that is the conclusion, and, second, whether or not there would have been any point in having warning labels bearing in mind that somebody in the plaintiff’s position would likely not have seen it.
In our submission, that only makes all the more important and less reasonable the failure to have attempted some other form of informing people who the defendant knew would be exposed to a risk. In short, if the warning labels were not good for people other than the original purchasers and tradesmen and professional handymen, as my learned friend puts it, then that, of course, was well appreciated by the defendant who, as the trial judge found, set about putting warning labels on in such a way that they would not subsist for later users.
As to mass media advertising, it would appear by reference to our learned friend’s rhetorical questions concerning the circulation of newspapers and the scope of broadcasters and even the cost of such things, that the defendant is proposing that under Lord Reid’s approach in Bolton v Stone a person might think it right to neglect doing something by way of warning of certain fatalities where they had already done the very same thing in order to promote selling the products in question because it is mass advertising of a kind which, it was held, had been engaged in by James Hardie that we were talking about, paid, large, prominent advertisements. Not just directed to the market of professional tradesmen or professional handymen, but publicly. In our submission, that is a surprising outcome and, in our submission, contrary to the common law’s concern for life and limb which informs the law of negligence in its historical and current forms.
In relation to product recall, I was not saying it was ever an issue in the case. It was used in my learned junior’s opening. Your Honours will see that in the Hannell supplementary material book, page 7, the passage starting halfway down that page. The impracticability of product recall of these commodities was precisely what informed the way in which the case was opened and then fought concerning the reasonableness for an alternative, namely, informed the people from whom it is impracticable to recall the product.
GLEESON CJ: One of the things you would have to inform them about – and this presumably was part of your case – is what actually contains asbestos. It is not self-evident.
MR WALKER: No. In our submission, there is a topsy-turvy aspect to this part of my learned friend’s answer. Assume instead of asbestos, which is now a common noun of no technical confinement, assume there was a poison, such as perhaps formaldehyde once was, which goes by a name that is not in common parlance, understood in the trade or the science to be extremely dangerous.
The notion that somebody who had commercialised products, including it in such a way as to expose people to a danger of which they became aware, could seriously say, well, no use me putting an advertisement in the paper warning that not to do certain things to your formaldehyde‑containing products because these people do not know what formaldehyde is and they certainly do not know what it is in their house has got formaldehyde in it.
The notion that a jury or a judge discharging a jury’s function would find that a proper response, applying Lord Reid’s approach, is, in our submission, laughable because particularly from a manufacturer who has already commercialised the product, the first step is to say, if you bought.....in such and such a year – your Honours have seen this with product recalls and corrective advertising, it is routine – then you ought to be aware of the following things about which you are probably not aware. It contains formaldehyde and that means you must not do X, Y and Z.
The same thing would apply with something you bought whether under the name of fibro or whether it refers to corrugated cement fencing of a kind that the evidence showed was to recur in many Perth suburbs. In our submission, it cannot possibly be an answer, as the Chief Justice below apparently thought it was, it cannot possibly be an answer but first people would have to be told they have this thing called asbestos in their very ordinary building materials.
Your Honours, in our submission, it is for those reasons that there is thrown up a case where both these cases provide admirably suited vehicles to determine what is a tolerable limit to the idiosyncrasies of jury decisions when certain death is the consequence of information held by the defendant about their own commercialised product being kept to the defendant so as to leave users to the vagaries of whatever private information they may otherwise obtain.
The question was asked by Justice Hayne of my learned friend as to precedential value. It is, of course, of no possible comfort to my clients that in future James Hardie will not be arguing precedential value of this appellate decision, which presumably would be the way in which they would act consistently with what senior counsel has just said, it may be of comfort to others. But there is another answer to that.
Of course there is no rule of law made by an appellate decision such as the Western Australian Court of Appeal in these two cases. It is not precedential in that sense. The law of negligence has not altered and the law of negligence does not concern fact-specific responses to particular risks, but there is judicial guidance taken by lower courts as to acceptable modes of common law reasoning which, in our submission, would be unrealistic not to appreciate does affect the future conduct of and, indeed, decisions of lower court cases, notwithstanding the lack of precedential value. May it please your Honours.
GLEESON CJ: Thank you. We will give our decisions in these matters at 2.15.
AT 12.40 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
GLEESON CJ: Call matter No 1, please.
COURT OFFICER: Moss v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd).
GLEESON CJ: The applicant failed in the Western Australian Court of Appeal on the basis of a unanimous and highly fact-specific decision on the issue of causation. The case does not raise an issue suitable to a grant of special leave to appeal, and in addition there are insufficient prospects of success to warrant a grant of special leave. The application is dismissed with costs.
Call matter No 2, please.
COURT OFFICER: Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd).
GLEESON CJ: Although one member of the Court of Appeal of Western Australia based his decision primarily on the question of duty of care, all the members of the Court of Appeal held that the breaches of duty, that is, forms of negligence relied upon by the applicant had not been established. That was what senior counsel for the applicant correctly described as a question in the nature of a jury question.
The applicant sought to identify, in the decision of the Court of Appeal, an issue of legal principle relating to the requirements of reasonableness in a case of a risk which, although low in incidence, has the consequence of death. However, the reasoning of the Court of Appeal which took account of consequences as well as incidence of risk proceeded according to orthodox legal principles, including those enunciated in the case of Wyong Shire Council v Shirt.
As in the previous matter, those well-established legal principles were applied in a process of reasoning that was fact specific and on the evidence well open to the Court of Appeal. The case did not raise any novel principle of law and the decision of the Court of Appeal does not stand as authority for any general legal principle other than the established principles that were applied to the particular facts and circumstances.
We are not persuaded that the interests of justice require a grant of special leave. In particular, we do not consider that the prospects of success of an appeal are sufficient to warrant a grant of special leave to appeal and the application is dismissed with costs.
AT 2.17 PM THE MATTER WAS CONCLUDED
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