Seltsam Pty Ltd v Mcneill - [2006] NSWCA 158

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: SELTSAM Pty Ltd v McNEILL [2006] NSWCA 158
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15/12/05

JUDGMENT DATE:
26 June 2006

JUDGMENT OF: Handley JA at 1; Tobias JA at 8; Bryson JA at 9

DECISION: 1. Appeal allowed with costs; 2. Set aside the decision verdict and judgment of the Dust Diseases Tribunal of 5 September 2005, and in lieu thereof give judgment for the defendant in the Tribunal with costs.; 3. The parties are directed to file in the Registry within 7 days their agreed orders dealing with restitution.; 4. If there is no agreement and agreed orders are not filed, the appeal will be listed before Bryson JA at 9.30am on 4 July 2006 for directions relating to restitution.; 5. The respondent to have a certificate under the Suitors' Fund Act 1951.

CATCHWORDS: NEGLIGENCE - liability of manufacturer to end user - asbestos cement sheeting - in 1961 the plaintiff, a priest, worked with asbestos cement sheeting purchased retail by a relative and manufactured by defendant and was exposed to asbestos dust and fibres - work totalled about 12 hours over several days - extension to his sister's house - no other exposure to asbestos dust and fibre apart from ordinary environmental exposure - in 2003 plaintiff became ill and mesothelioma diagnosed - Dust Diseases Tribunal found, on extensive review of evidence including publications about knowledge of risks related to asbestos in 1961, that defendant owed duty of care to plaintiff and was in breach by failing to print warning on each sheet - on review of evidence, held that the conclusion, on test in Shirt v Wyong S.C. that there was a foreseeable risk of injury to class of persons including the plaintiff and hence a duty of care to the plaintiff, on state of available knowledge in 1961, was not reasonably available - held no duty of care - consideration of establishing relevant class of persons for purposes of foreseeability and casual end users not conflated with persons more intensely exposed in industrial occupations - consideration of Trial Judge's decision on need to print warning on sheets - admissibility of plaintiff's evidence on how a warning would have affected his conduct.

LEGISLATION CITED: Dust Diseases Tribunal Act 1989 (NSW) ss. 25(3), 32(1)
Evidence Act 1995 (Cth) s.76
Evidence Act 1995 (NSW) ss.76, 77, 78 and 79
Factories Act 1937 (UK) s.47
Supreme Court Act 1970 (NSW) s.75A

CASES CITED: All State Life Insurance Co. v Australia and New Zealand Banking Group Ltd (No.5) (1996) 64 FCR 73
Bourhill v Young [1943] AC 92, 98-9, 101, 102, 104, 106, 108 and 117
Bradley v James Hardie & Coy Pty Ltd & Anor DDT 58 of 1995
Bunyan v Jordan (1937) 57 CLR 1, 11-12
Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202
Chester v Waverley Corporation (1939) 62 CLR 1, 33
Commercial Union Assurance Co. of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Dominelli Ford (Hurstville) pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471
EM Baldwin & Son Pty Ltd v Plane [1998] 17 NSWCCR 434
Father Robert McNeill v Seltsam Pty Limited [2005] NSWDDT 43
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Home Office v Dorset Yacht Co. Ltd [1970] AC 1004
Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934
Hughes Aircraft Systems International v Airservices Australia (No. 3) (1997) 80 FCR 276
Huntsman Chemical Co. Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242
Jaensch v Coffey (1984) 155 CLR 549
Jones v Dunkell (1959) 101 CLR 298
Julia Farr Services Inc v Hayes [2003] NSWCA 37, 25 NSWCCR 138
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
McCusker v James Hardie & Coy Pty Ltd DDT 179 of 1996
Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383
Nielsen v Seltsam Pty Ltd DDT 280 of 2003
Olson v CSR Limited & Anor DDT 72 of 1994
Palsgraf v Long Island Railroad (1928) 162 NE 99
Rootes v Shelton (1967) 116 CLR 383
Rosenberg v Percival (2001) 205 CLR 434
Seltsam Ltd & Manufacturers Mutual Insurance Ltd v Minahan (1996) 13 NSWCCR 410
Shirt v Wyong Shire Council [1978] 1 NSWLR 631
Tame v State of New South Wales (2002) 211 CLR 317
TCN Channel 9 Pty Ltd v Antoniadis [No 2] (1999) 48 NSLWR 381
Vairy v Wyong Shire Council (2005) 80 ALJR 1
Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES: Seltsam Pty Ltd - Appellant
Robert Alban McNeill - Respondent

FILE NUMBER(S): CA 40790/2005

COUNSEL: B. Walker SC / G. Parker - Appellant
J. Rush QC / A. McSpedden - Respondent

SOLICITORS: Makinson & d'Apice, Sydney - Appellant
Turner Freeman, Parramatta - Respondent

LOWER COURT JURISDICTION: Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S): DDT 84/2005

LOWER COURT JUDICIAL OFFICER: Judge Duck

LOWER COURT DATE OF DECISION: 05/09/2005

LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWDDT 43

CA 40790/2005

HANDLEY JA
TOBIAS JA
BRYSON JA

26 JUNE 2006

SELTSAM PTY LIMITED v ROBERT ALBAN McNEILL

Judgment

1 HANDLEY JA: I have had the benefit of the reading the judgment of Bryson JA in draft and I agree with it, but will add some brief additional reasons.

2 The trial Judge’s judgment contains a thorough and lengthy review of the evidence dealing with the evolving knowledge of the dangers of asbestos dust prior to the plaintiff’s exposure in 1961. Moreover, as is common in the Dust Diseases Tribunal, the judgment was prepared and delivered in circumstances of considerable urgency. Nevertheless, and with respect, in my opinion the legal fallacy in the Judge’s reasoning was 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.

3 As Professor Fleming stated in the 9th and last edition of his “The Law of Torts” 1998 at p 158:

“To be liable for an injury he has caused, the defendant’s carelessness must not only have been in breach of a duty to exercise care, but the duty must have been owed to the plaintiff. In other words, the latter cannot take advantage of the fact that the defendant happened to be committing a wrong to someone else; he must bottom his claim on violation of a right of his own.”

4 This principle is firmly anchored in the decision of Cardozo J in Palsgraf v Long Island Railroad (1928) 162 NE 99, the decisions of the High Court in Bunyan v Jordan (1937) 57 CLR 1, 11-12; and Chester v Waverley Corporation (1939) 62 CLR 1, 33 and of the House of Lords in Bourhill v Young [1943] AC 92, 98-9, 101, 102, 104, 106, 108 and 117. In that case Lord Wright stated the principle at 106, 108:

“The damage must be attributable to the breach by the defendant of some duty owing to the plaintiff … Thus, in the present case John Young was certainly negligent in an issue between himself and the owner of the car which he ran into, but it is another question whether he was negligent vis-à-vis the appellant … If … the appellant has a cause of action it is because of a wrong to herself. She cannot build on a wrong to someone else.”

5 The principle was stated by Lord Porter at 117:

“The duty is not to the world at large. It must be tested by asking with reference to each … complainant: Was a duty owed to him or her?”

6 I agree with Bryson JA that there was no evidence capable of establishing that there was a foreseeable risk of injury in 1961 to a casual, one off, user of asbestos cement sheets. The appeal must therefore be allowed and the orders proposed by Bryson JA should be made.

7 The Court was informed at the conclusion of the argument that the appellant had paid the judgment (T 76). The appellant is therefore entitled to restitution with interest in accordance with the principles stated in TCN Channel 9 Pty Ltd v Antoniadis [No 2] (1999) 48 NSLWR 381. Because liability was in issue, and the prospects of restitution if the appeal succeeded would be doubtful, this Court would almost certainly have granted a stay of execution pending the appeal in accordance with the principles stated in Antoniadis [No 2] at 385.

8 TOBIAS JA: I agree with Bryson JA.

THE PARTIES AND THE ISSUES

9 BRYSON JA: The appellant (defendant in the Tribunal) appeals from the decision, verdict and judgment of the Dust Diseases Tribunal of New South Wales (his Honour Judge Duck) of 5 September 2005, which awarded to the respondent (plaintiff in the Tribunal) damages of $205,115.95: Father Robert McNeill v Seltsam Pty Limited [2005] NSWDDT 43. The respondent who was born in 1927 was ordained a priest of the Roman Catholic Church in 1952 and spent his working life in that calling until he retired in 1990. Symptoms of lung disease presented themselves in July 2003 when preparations were being made for a hip replacement operation. He underwent drainage of fluid from his right lung on three occasions, and after extensive investigations in January 2005 he was diagnosed as suffering from mesothelioma. This condition is increasingly debilitating and his expected lifespan has been shortened; treatment has been principally directed to prolonging his life. The assessment of damages was not challenged on appeal.

10 The appeal is brought as of right under s.32 of the Dust Diseases Tribunal Act 1989 (NSW); s.32(1) is in these terms:

32 Right of appeal to Supreme Court

(1)

Supreme Court Act

11 There are 10 grounds in the appellant’s Supplementary Notice of Appeal (Orange 26) dated 25 November 2005, and I gather them into four broad groups.

Foreseeability

1. There was no evidence to support a finding that, at the relevant time, the Appellant ought to have foreseen a risk that end users of its product might sustain a lung disease from asbestos in its asbestos cement product.

2. Alternatively, his Honour failed to give adequate reasons for any such finding.

3. His Honour was not entitled (at [99]) to draw inferences adverse to the Appellant from the Appellant’s failure to lead evidence “about its knowledge or attitude to the articles published both here and overseas”.

Scope of Duty – warning

4. In concluding that the Appellant’s duty of reasonable care required it to warn end users of the risks of exposure to dust emanating from the product, his Honour failed to make essential findings of fact, namely:

(a) the content of the warning;
(b) how the warning ought to have been given; and
(c) why the Appellant’s duty of reasonable care required such a warning to be given in such a manner.

5. If and to the extent that his Honour found (at [119-20]) that the Appellant’s duty of reasonable care to the Respondent required it to stamp its product with a warning to the effect that if people breathed in any of the dust generated by working with the product, they might become very sick and even die, there was no evidence to support that finding.

6. Alternatively, his Honour failed to give adequate reasons for that finding.

Admissibility of evidence

7. The statement by the Respondent upon which his Honour relied to find (at [124]) that “if there had been a warning”, the Respondent would never have used the Appellant’s product:

(a) was, by sub-section 76(1) of the Evidence Act 1995 (NSW), inadmissible; or
(b) ought to have been excluded pursuant to section 135 of the Evidence Act.

Causation

8. There was no evidence to support a finding that, had the Appellant given such warning as its duty of care required it to give, the Respondent would not have used the Appellant’s product and consequently would not have contracted mesothelioma.

9. Alternatively, his Honour failed to give adequate reasons for any such finding.

10. If and to the extent that his Honour held (see [124]) that a contribution to the risk of injury to the Respondent was sufficient to establish causation and found that the Appellant’s failure to warn made such a contribution, then:

12 Findings of the Trial Judge establish that the respondent’s disease and mesothelioma were caused by inhalation of asbestos dust and fibres. The course of the respondent’s working life as a priest, and of his life generally, created few occasions on which he can have been exposed to asbestos dust and fibres in addition to normal exposure through their presence in the environment. The respondent sought to establish two occasions on which he had done work which exposed him to inhalation of asbestos dust and fibres. In 1960 or perhaps a couple of years before that he worked at his mother’s house at Wilson Street Maroubra and installed ceilings in a veranda and one room extension at the back of the house. He used about five or six sheets of fibro, cut them to size and nailed them into position to form a ceiling. He believed that he rasped the edges of the sheet but he did not need to drill them. Although the respondent believed that the fibro sheets contained asbestos, he did not tender evidence which showed that they in fact did. (Judgment [3] and [4] Red 14). This event does not require further consideration.

13 In 1961 the respondent fixed corrugated asbestos cement sheeting as a roof to a rumpus room in the backyard of the home of his sister and brother-in-law in Gwawley Parade Miranda. (The Trial Judge’s findings, reflecting the evidence, go no further into the time of the events than to say that they happened in the year 1961.) The respondent's uncle had carried out the construction of the rumpus room other than the roof, and requested the respondent to construct the roof; and he agreed that he would have a go at doing it. He worked on two or three Mondays, for two, three or sometimes four hours. His uncle had constructed the wooden frame. When the respondent started work the sheets were stacked on the site where they had been deposited on delivery by whomever the uncle bought them from. The respondent's job was to put the asbestos sheeting on top of the wooden frame by drilling holes in the sheets and screwing the sheets down. After taking measurements the asbestos sheeting was cut, a lot of it on the ground, some of it on the roof, with fibro cutters and a saw belonging to his uncle. The respondent did the cutting and forming of the fibro sheets. He drilled holes using a hand drill. A friend handed the fibro sheets up to him on the roof and he fixed them into position. At the end of each day’s work he cleaned up by picking up broken pieces of sheeting and putting them in the rubbish bin. The sheets were dusty to handle; dust was visible when he sawed sheets, drilling holes also created dust, and dust got on the sheets when they were handled. In the respondent’s evidence, the sawing process produced visible dust, there was plenty of dust in all the work, and he breathed it in.

14 When cross-examined the respondent accepted (Black 21) that the sheets were already cut to appropriate size, and he did the final check by a few inches or so, cutting some small parts of the sheets in order to fit them to size. He remembered doing a little bit of cutting but did not remember cutting all the sheets. It was his recollection that he may have cut some sheets -- "Some sheets. In other words, not too much work cutting."

15 Findings (Judgment [5]–[10] Red 14-15) based on this evidence were not challenged on appeal. The Trial Judge found (Judgment [12] Red 15): “By any measure, the plaintiff’s exposure to asbestos dust was light” and (Judgment [73] Red 44): “… there is no gain saying the proposition that the plaintiff’s exposure was very light.”

16 Asbestos cement sheeting contains between 10 and 15 per cent content asbestos fibre. The corrugated sheets were available for inspection before and at trial and were stamped with the appellant’s mark – “Wunderlich Durasbestos”. The Trial Judge found (Judgment [11] Red 15):

11 … Samples of the asbestos sheets were examined by Dr G D Pooley whose report of 5 April 2005 is PX3 in the proceedings. Both chrysotile and amosite fibres were easily located in the sample. It was the estimate of Mr G Pickford called for the defendant that 10-15 percent by weight of the fibro consisted of asbestos of which he thought three quarters to ninety per cent or more would have been chrysotile. The remainder would have been amosite. (T141.34-36) Mr Pickford said that amosite was found to be dustier than chrysotile only. (T115.11-12) There was also evidence from Professor Henderson to the effect that the cutting of AC Building materials promotes preferential release of amphibole fibres. (PX2 pg 5; T34.41-48)

17 The origin of the asbestos cement sheeting as product manufactured by the appellant is clear. The chain of distribution after the product left the appellant’s hands is not established by evidence and findings, but it is clear that the respondent was not at any point the purchaser or the owner of the sheeting, which is said to have been obtained as a building kit. It was reasonably foreseeable, as a matter of course, that when the appellant distributed asbestos cement sheeting which it had manufactured, some of the sheeting would be sold by retail, and some of that would be used for building work by home handymen who did not work in industrial situations.

18 It will be necessary to set out extensive passages of the Trial Judge’s reasons, and I will give some matters in outline (Judgment [1] Red 13):

1 … The plaintiff alleges the defendant was negligent in exposing him to the inhalation of asbestos dust and fibre associated with the work. The basic allegation of negligence is failure to warn about the risks of breathing in asbestos dust. The fundamental issue between parties is what should the defendant have reasonably known about the risks in 1961. This knowledge or lack of it may go to whether or not the defendant owed the plaintiff any duty of care. It may also go to whether or not if such a duty existed the defendant was in breach of the duty ie acted in a way other than the way in which a reasonable person in the defendant’s position would have acted.

THE GROUNDS OF THE DECISION UNDER APPEAL

19 The Trial Judge gave appropriately lengthy and extensive consideration to a very large body of evidence relevant to foreseeability of risk to a class of persons of which the respondent was a member, and on the response which the appellant should reasonably have made to the foreseeability of risk. His Honour (Judgment [118] Red 64) distinguished foreseeability in the context of employment relationships (and referred in this context to Seltsam Ltd & Manufacturers Mutual Insurance Ltd v Minahan (1996) 13 NSWCCR 410). Consideration of foreseeability in relation to duty of care necessarily led the Trial Judge to state, at a level of abstraction, the class of persons risk of injury to whom was foreseeable into which he placed the respondent. The Trial Judge dealt with this in Judgment [118] (and I have emphasised some words):

Seltsam Ltd v Minahan

In this case, the plaintiff was a member of a class, namely the end users of asbestos of cement sheeting. Those members might be exposed to very light exposures or heavier exposure if they used power tools day in and day out. It was the class that was exposed to the risk.

20 The body of material in evidence which might be thought to have some bearing on the foreseeability of risk of injury was very great, and was spoken of by the Trial Judge as a “welter” of material. These included scores of publications in official reports and learned journals dealing with use of asbestos in industry, disease in relation to asbestos and many more and less closely related subjects, from a wide range of sources and dates, the earliest being an extract from the Annual Report of the Chief Inspector of Factories for the year 1898 published by HM Stationary Office in London. There are also transcripts of evidence given, by witnesses who gave evidence in these proceedings and by others, in other lawsuits. Admission of this material was enabled by s.25(3) of the Dust Diseases Tribunal Act. The respondent called expert oral evidence relevant to foreseeability from Professor D. W. Henderson, Professor of Pathology at Flinders University, and Mr G. J. Stewart who is now retired or semi-retired and had a long career as a scientific officer in industrial hygiene, much of it in the Victorian Department of Health, including work from 1952 onwards which equipped him to speak of the state of knowledge and of practices in handling asbestos at times relevant to the respondent’s claim. The appellant called the oral evidence of Mr G. C. Pickford, an occupational hygienist who worked for Wunderlich from and after 1972. Comments by the Trial Judge (Judgment [102]–[105] Red 58–59) show that the effect of publications in evidence was argued through the evidence of Mr Stewart and of Mr Pickford. The appellant relied on transcripts of evidence given by Professor D. A. Ferguson, a Consultant Occupational Physician who was qualified by experience to give evidence about the state of knowledge in thoracic medicine and about industrial practices in periods before and after 1961. Professor Ferguson was no longer alive at the time of the trial but had given evidence in a number of earlier proceedings. The appellant also relied on evidence which had been given by Dr Gandevia, Dr McNulty and Dr Joseph in other proceedings.

21 After reviewing this material the Trial Judge said (Judgment [97] Red 57):

97 … The submission developed in the light of these materials is to the effect that if the defendant had sought the advice of Professor Ferguson or Dr McNulty or Dr Gandevia about the risk of injury in 1960 or 1961 to an end user of asbestos cement products they would have been informed that there was no such risk. It is submitted that such a risk of injury to the plaintiff or indeed to any end user of the products was not foreseeable at that time.

22 In the present case the findings of Judge Duck are fully available and show that the conclusion that there was a duty of care is based on the fact of availability of knowledge of the risks associated with asbestos from a number of sources which his Honour specified. The Trial Judge said (Judgment [98]–[104] Red 57–58):

98. I read carefully the evidence of Professor Ferguson and the material from Dr Gandevia and Dr Joseph. In respect of Professor Ferguson’s evidence in particular it seems to me that there is simply too much other evidence from all over the world published over many years to permit Dr Ferguson’s evidence to be accepted without qualification. The material set out above from the Professor does not seem to sit comfortably with the concessions made by Mr Pickford about the state of knowledge generally.

99. From the defendant’s point of view there is simply too much material demonstrating the known risks of asbestos for it to be permitted to comfortably rest behind the bulwark provided by Professor Ferguson’s view. More especially is it so when there is no evidence from the defendant itself about its knowledge or attitude to the articles published both here and overseas or about its attitude to risks undertaken by users of its products. None of its records has been produced.

100. The observations of the author of the article published under the auspices of the National Health Medical Research Council seem to pay no heed to the vast body of other material to which I have referred. A similar comment may be made about Dr Francis in DX7.

101. Dr Gandevia’s opinion supports the defendant’s position, and so does, to some extent, the view of Dr Joseph.

They are, however, to be read against the background of the other material referred to above. They are not sufficient, in the light of that material, to carry the day for the defendant.

102. Having come to these conclusion, I note that I have said nothing, or nothing much, about the evidence of Mr Stewart.

103. Much of what he had to say was corroborated by the concessions made by Mr Pickford. I have reached the view I have expressed without placing great reliance on Mr Stewart’s evidence. In some respects, he is the other side of Mr Pickford’s penny. They have been giving evidence on the opposite sides of cases for years. I note however that the view I have reached is in accordance with and supported by Mr Stewart’s opinion.

His evidence is not criticised as lacking independence or probity. Further, he was engaged in industrial hygiene in the years leading up to the plaintiff’s exposure, and after it.

23 After referring to submissions and judicial decisions relating to duty of care the Trial Judge went on (Judgment [109]–[112] Red 61–62):

Wyong Shire Council v Shirt

146 CLR 40

Tame v New South Wales

(i) The judgment of Spigelman CJ in Julia FarrServices Corporated v Hayes (2003) 24 NSWCCR138 at 142.

(ii) The judgment of Gummow J in Swain v Waverley Municipal Council (2005) 79 ALJR 565 at 108.

110. I observe in passing that Mr McHugh, as he then was, was Counsel for the unsuccessful appellant in Shirt.

Shirt

Bolton v Stone

The examination was designed to show that the case raised a new problem, the problem being that posed by a risk of injury which was foreseeable, notwithstanding that “the chance of its happening in the foreseeable future was infinitesimal”,so infinitesimal “that it was only likely to happen once in so many thousand years”.

Mason J continued:

Bolton v Stone

In this sentence his Lordship characterises the risk in Bolton v Stone, earlier described as “infinitesimal” yet one which could not be described as “a fantastic or far fetched possibility” as nonetheless constituting “a real risk”.

The “Wagon Mound”

If a real risk is one which would occur to the mind of reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what the reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate presented no difficulty involve no disadvantage, and required no expense.

In essence its correctness depends upon a recognition of the general proposition that foreseeability of the risk of injury and the likelihood of that risk occurring are two different things.........

24 The Trial Judge also said (Judgment [121] Red 65):

121. In coming to this view I have repeatedly cautioned myself against, the obvious danger of looking back over 45 years or so and assessing the defendant’s position with the benefit of hindsight. It is an easy mistake to make. The matter which keeps recurring in my mind is the sheer volume of the material emanating from a number of countries warning about the dangers of asbestos, particularly when no one knew what a safe dose was.

FORESEEABILITY

25 In its written submissions the appellant said (Orange 31 para [6]):

6. The Appellant accepts that, if there was a reasonably foreseeable risk that the use of its product would damage the health of those who used that product, the Appellant owed a duty of care to potential users of its product (including the Respondent) to take reasonable steps to warn them of that risk.

26 In summary, written submissions on behalf of the appellant relating to foreseeable risk were to these effects:

A major issue at the trial, described by the Trial Judge as the fundamental issue between the parties, was whether there was in 1961 a foreseeable risk of lung disease to end-users of asbestos cement building products. The lung disease to which the risk related was asbestosis, and was not limited to mesothelioma. So the major issue of foreseeability became:
(a) by reference to what the appellant ought reasonably to have known in 1961, what level of exposure to asbestos could cause asbestosis; and
(b) again by reference to what the appellant ought reasonably to have known in 1961, whether end-users of the appellant's product could sustain that level of exposure. (Orange 31 paras [9] & [11])

This finding did not identify
-- the lung disease, or
-- the particular matters which should have led the appellant to conclude in 1961 that end-users of its product were at risk of developing the disease.

The matters referred to as concessions by Mr Pickford do not identify these subjects either. (Orange 32 para [14])

The appellant accepts that in 1961 it was known that a sufficiently high level of cumulative exposure to asbestos could cause lung disease and contends that it should have been decided whether that level of cumulative exposure was known to be such that it might be encountered by end-users by the appellant's products.
The concessions attributed to Mr Pickford lacked specific application to end-users of the appellant's product according to what was known in 1961. As to concession (a) – “before 1950 asbestos was recognised as toxic" it was contended that in 1950 asbestos was not regarded as toxic in the sense that any exposure to it was poisonous, but in the sense that a sufficiently high level of cumulative exposure could cause lung disease. In the context of this case, concession (a) was meaningless.

Dealing with concession (j) – “it was appreciated in 1930 that persons sawing asbestos cement sheets were potentially at risk", the evidence upon which this was based was a 1930 report by Merewether & Price which dealt with dust suppression in the asbestos industry and finishing processes in factory production of asbestos cement sheets, and did not deal with periods and conditions of exposure or with the cumulative levels of exposure which would apply to an end-user. (Orange 32–33 para [15])

No evidence was referred to by the Trial Judge which demonstrated what was the reasonably maximal level of exposure which end-users might encounter, or demonstrated that that level of exposure was comparable to factory exposure of a type referred to by Merewether & Price.

Even if there were evidence upon which it could have been found that the appellant in 1961 ought to have known of a risk of lung disease in end-use of its product the reasons for decision were inadequate in that they expressed conclusions in a broad general way without making specific findings of fact and without identifying the evidence which supported those findings. In the circumstances the Trial Judge was required to deal properly with the appellant's case on this point. (Orange 33 para [16])

The appellant's case included evidence of Professor Ferguson which showed his opinion that end users of asbestos cement building products were not, in 1961, perceived as being at risk of asbestosis. The Trial Judge dealt with this by saying "there is simply too much material demonstrating the known risks of asbestos for [the Appellant] to be permitted to comfortably rest behind the bulwark provided by Professor Ferguson's view”. The Trial Judge did not identify what the material referred to was. The material to which the Trial Judge did refer did not clearly contradict the specific opinion attributed to Professor Ferguson that in 1961 end-users of asbestos cement building products were not perceived as being at risk of asbestosis. (Orange 33 paras [17] & [18])

There was a failure to give adequate reasons for the decision to reject Professor Ferguson's opinion. (Orange 34 para [20])

27 The respondent's written submissions dealing with foreseeability were to this effect:

There was abundant evidence, to which the Trial Judge referred, on which it was open for him to find that it was foreseeable that a lung disease might develop from exposure to asbestos dust liberated from asbestos cement sheeting. (Finding at Red 62 U-V). The written submission referred extensively to evidence included in this contention. (Orange 41 paras [4] & [5])

The arguments made by the appellant in respect of foreseeability are directed to the question of foreseeability of a particular risk to which the respondent was exposed but it is incorrect to require that there be foreseeability of the precise risk of injury suffered.

The Trial Judge gave adequate reasons which were fully and clearly enunciated and articulated the essential grounds for rejecting the opinions of Professor Ferguson. (Orange 42-43 paras [6] & [7])

The Trial Judge articulated the issues he addressed and explained his reasons for reaching his conclusion. The written submissions reviewed what was contended to be evidence to the contrary of the opinion of Professor Ferguson. (Orange 42-43 paras [6.2]–[7])

The Trial Judge found that the concessions made by Mr Pickford established in convenient form the state of knowledge which the appellant should have had in respect of its asbestos products, considered and applied the appropriate test for regarding foreseeability and reached the conclusion that there was a foreseeable risk of injury. (Orange 43 paras [8]–[10])
It was appropriate for the Trial Judge to note that there was no evidence produced from the appellant to counter the evidence that the risks of asbestos were widely known in Australia in 1961. This was a comment on the lack of evidence and was not the drawing of an impermissible inference. The Trial Judge's conclusions were based upon consideration of the large body of evidence and not upon deciding what was known or ought to have been known by a process of inference.

28 Foreseeable risk of injury to workers in factory situations in which manufacturing processes are applied to asbestos, and in other industrial situations, has long been clearly known, as is shown by judicial decisions. There is no ready transition from this body of knowledge to a conclusion about the reasonable foreseeability of risk of harm to persons in a class of which the respondent is a member. It is important to observe on the large mass of material in evidence that a great deal of it, indeed almost all of it relates to industrial disease risk affecting persons whose intensity of exposure to asbestos, and to inhalation of asbestos dust and fibres, is altogether different to the intensity of exposure of the respondent, who handled asbestos cement sheeting, including cutting and drilling it and fixing it into position, in one job involving work over a period in the order of 10 or 12 hours at the most; or of any class of users of asbestos cement sheeting in which he could justly or reasonably be included. In terms of the degree and intensity of exposure to risk of inhaling asbestos dust and fibres, his exposure to risk was far different and far less than that encountered by persons handling asbestos cement sheeting in workplace situations such as carpenters and fixers in housing construction, with involvement in processes of cutting, drilling and handling, undertaken repeatedly and as part of an occupation extending, it may be for years, but in reasonable contemplation extending for some months at the least. An altogether different and even higher intensity of risk is incurred by workers in industrial processes of manufacturing asbestos cement sheeting or other products of which pure asbestos is a component. These exposures to risk are far more intense than risk characteristically and foreseeably encountered by a home handyman, and far more intense than that actually encountered by the respondent. The Trial Judge did not in his extensive reasons identify any reference in the evidence to situations of risk, and to knowledge of risk in situations analogous to that of the respondent.

29 Expressions used in the course of argument tended to deal separately with workers exposed to heavy levels of asbestos in factory situations and with end-users, referring to persons such as carpenters who worked on asbestos cement sheeting on building sites, or other persons who did not work in a factory situation. I do not find this a satisfactory classification in that 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.

30 The test by which the existence of a duty of care is to be established in this case, as it generally is except in classes of cases where judicial authority has established its existence, is found in the judgment of Mason J. in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48. The introductory words of the passage suggest that it is directed to decision on breach of duty, but its actual application has been wider. As the existence of a duty of care was conceded in Shirt's case, Mason J’s judgment is an unlikely source for the authoritative statement on the circumstances in which a duty of care exists which it has come to be treated as. Mason J. said:

In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.

31 In many negligence cases, including cases where a consumer or user of a product claims against the manufacturer of the product, reasonable foreseeability ascertained in this way establishes the existence of a duty of care. There may be some reason of policy why it does not; see Jaensch v Coffey (1984) 155 CLR 549 at 583 (Deane J); at 553-554 (Gibbs CJ); and Shirt v Wyong Shire Council [1978] 1 NSWLR 631 (Glass JA) at 640 referring to Home Office v Dorset Yacht Co. Ltd [1970] AC 1004: but there is none in this case. There have been expressions of less than complete satisfaction with Mason J's test of foreseeability; see Tame v State of New South Wales (2002) 211 CLR 317 at 351-357 [96-108] (McHugh J) and at 429 [331] (Callinan J). As the judgment of Mason J. was concurred in by Stephen and Aickin JJ it is authoritative, notwithstanding the view expressed by Wilson J. at 52 - 53; and see Murphy J. at 49. The judgment of Mason J. remains authoritative: Julia Farr Services Inc v Hayes [2003] NSWCA 37, 25 NSWCCR 138 at [2] and [3] (Spigelman CJ).

32 An aspect of the judgment of Mason J. which I find striking is the absence of reference to reasonable foreseeability in the last four sentences of the passage which I have cited; those four sentences are frequently referred to without the preceding sentences. It would be a misreading to suppose that reasonableness is not an aspect of foreseeability. Mason J. said nothing to express an opinion that it is not, and his judgment opened at 44 with the following sentences, in which the reasonable man is part of the concept of foreseeability:

Donoghue v Stevenson

Home Office v Dorset Yacht Co Ltd

Anns v Merton London Borough Council

33 Whether a duty of care exists falls to be decided upon both facts and law. The present it is not one of the cases where judicial decisions establish the existence of a duty of care. The process of decision was referred to in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 at 398-399 by Windeyer J. in these terms:

Whether at some time in the past the prospect of the happening of an event which in fact happened was such that it created an obligation to take precautions against it is called a question of fact. It is really a value judgment upon ascertained facts.

Shirt v Wyong Shire Council

Caledonian Collieries Ltd v Speirs

Rootes v Shelton

Caledonian Collieries Ltd v Speirs

… It has been contended before us that it was for the judge to decide as a matter of law whether the appellant was under any duty of care, and if so what that duty was. It was, of course, for the judge to tell the jury what conclusions of fact they must reach before they could be entitled to treat the appellant as under a duty of care to users of the level crossing, and to describe in abstract terms the standard of that duty if it existed. This his Honour did; and in the circumstances of the case the rest was for the Jury.

Rootes v Shelton

34 In Shirt v Wyong Shire Council at 639-640 Glass JA first set out a number of factual considerations which, as it had been contended, showed that there was no duty of care or alternatively that the duty had not been broken. Glass JA said (at 639):

In my opinion, the factual considerations which I have listed are entirely relevant to the breach question. They are, however, of only limited relevance to the duty question. This is because the existence or non-existence of a duty owed by the defendant council to the plaintiff falls to be considered upon a higher level of abstraction. The conduct relevant to the breach inquiry is the foreseeability of harm resulting from the acts or omissions of the defendant, or its servants, proved to have occurred. The inquiry to be made in relation to duty or no duty relates to the foreseeability of harm resulting to the plaintiff from the conduct of the defendant, considered quite generally as that of a party about to undertake the excavation of the bed of a lake frequented by the public.

35 Later when dealing with whether the evidence was capable of establishing breach of the duty of care, Glass JA concluded his consideration of what view the jury could reasonably have taken about breach (which his Honour plainly regarded as a question of fact) with a sentence which has achieved some fame (at 641):

I think this was a conclusion upon the evidence reasonably open to the jury when proper allowance is made for the undemanding test of foreseeability which has now become received doctrine in the law of negligence.

The

Wagon Mound (No.2)

36 In my opinion questions of reasonable foreseeability and existence of a duty of care are not correctly decided by applying, as if they express a syllogism, Mason J’s references to a risk which is remote, and to a risk which is not far-fetched or fanciful. The question of foreseeability must be looked at in the broad. 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 handled 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.

37 Foreseeability in relation to breach of duty is well-trodden ground in litigation relating to claims between employees and employers where asbestos-related disease has been caused by working conditions, so much so that in 1998 Fitzgerald AJA said, in the EM Baldwin & Son Pty Ltd v Plane [1998] 17 NSWCCR 434 at [111]:

Whatever might have been the position earlier, it is futile for an employer which exposed an employee who now has an asbestos-related disease to substantial asbestos dust during a period within the last 35 years to litigate foreseeability in the Dust Diseases Tribunal in other than exceptional circumstances.

Julia Farr Services Inc. v Hayes

38 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 the 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 manufacturered 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.

39 A large number and several classes of persons were exposed to risk of inhaling dust and particles containing asbestos arising from the handling and use of manufactured product of the appellant. These included workers who handled asbestos cement sheeting in industrial situations, such as cutting and shaping sheeting in factories or on construction sites or in processes of loading, handling and distributing. It would not be just to include the respondent in the same class as these persons, whose exposure, as reasonably foreseen, was exposure to asbestos diluted as a component in asbestos cement sheeting, and extended to exposure for hours in the course of working days, and to continuing exposure over periods of months or years in a working career. The industrial situations in which these persons worked provided means for dissemination of knowledge of existence of risks and responses to risks. Their situations also differed from that of the respondent in the respect that their operations took place in workplace situations where factors operate on risk such as responsibilities of employers and their responses to them, skills of workers engaged in continuing activities, choice of tools techniques and means of control hazards, and equipment to protect against inhalation of dust. The question of foreseeability of risk of harm to persons such as the respondent should not, on a just or reasonable basis, be decided upon information known or available to the appellant about risks to persons in industrial situations.

40 When addressing foreseeability and the existence of a duty of care it is in my opinion an error, and an error of law, to treat the respondent as a member of any class more highly exposed to risk than a class described at a high level of abstraction as 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. The respondent’s exposure in several periods of work which may have totalled in the order of 10 or 12 hours make his exposure very low, even for what is characteristic of this class. 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.

FINDINGS ON KNOWN RISKS

41 The Trial Judge’s expressions (Judgment [98] and [99] Red 57) show that in the Trial Judge’s finding Professor Ferguson’s evidence could not be accepted without the qualification that his views did not sit comfortably with concessions made by Mr Pickford about the state of knowledge generally; and Professor Ferguson’s evidence was outweighed because there was [98] “… simply too much other evidence from all over the world published over many years …” and [99] “… simply too much material demonstrating the known risks of asbestos for it to be permitted to comfortably rest behind the bulwark provided by Professor Ferguson’s view.”

42 It was not an error in point of law to decide not to accept Professor Ferguson’s evidence. The effect of the Trial Judge’s conclusions is that, in his Honour’s findings, evidence from all over the world published over many years demonstrated the known risks of asbestos; the state of knowledge which the appellant had or should have had in respect of its asbestos products appeared from matters considered by Mr Pickford and enumerated in the Judgment (Judgment [104] and [108] Red 58, 59 – 61). The Trial Judge found (Judgment [112] Red 62):

112. In this case I find as a fact that what was foreseeable was the development of a lung disease from exposure to asbestos dust, liberated from asbestos cement sheeting.

43 In his judgment the Trial Judge stated, at considerable length, the effect in his Honour’s view of many official papers, and articles published during the 20th century in medical and industrial journals, dealing with the dangers of exposure to asbestos, and the effect of expert evidence including evidence in other proceedings transcripts of which had been tendered before the Trial Judge. I survey his Honour’s treatment of these so as to consider whether there was a basis upon which, rejecting Professor Ferguson’s evidence, it could reasonably be found as his Honour found in para [112].

44 Annual Report of the Chief Inspector of Factories and Workshops for the year 1898, a British Parliamentary Paper Cd.27 published in 1900 (Judgment [36] Red 26, Blue 1/2). This included extensive observations by factory inspectors on the evil effects of dusty occupations including asbestos sifting and carding.

45 “Industrial Health”, published in Philadelphia in 1924 dealing with the injurious effects of dust and a study of tuberculosis in relation to dusty trades (Judgment [37] Red 27, Blue 1/9). This deals extensively with the adverse effects of dust and dusty trades, in factory situations. It does not appear to deal specifically with asbestos.

46 British Medical Journal 1924 p.147 (Judgment [38] Red 28). A Memorandum by W.E. Cooke MD on fibrosis of the lungs due to the inhalation of asbestos dust reported on post-mortem signs of lung disease in a woman who worked in an asbestos factory for 18 years from the age of 13 and died at the age of 33.

47 Report of the Director General of Public Health New South Wales, 1927 (Judgment [39] Red 28, Blue 24) contains notes by Mr Badham, Medical Officer in Industrial Hygiene, on fibrous pneumonoconiosis produced by silicates and other minerals. This deals with fibrosis found after exposure to certain mineral dusts and names six such disorders including asbestosis. It refers to two then recently published accounts of cases of asbestosis, one being that referred to by Cooke, and to a publication by Simpson which described four cases among Africans working in an asbestos crushing mill.

48 “Occupational and Health”, (Judgment [40] Red 28, Blue 146) an Encyclopaedia published by International Labour Office, Geneva in 1930 contains an Article relating to asbestos and refers to the constant exposure to danger from dust of workers engaged in extraction and manufacture of asbestos, especially in spinning and weaving operations.

49 Report by Dr Merewether Inspector of Factories of the United Kingdom, published in 1930, entitled “The Occurrence of Pulmonary Fibrosis and Other Pulmonary Affections in Asbestos Workers” (Judgment [41] Red 29, Blue 1/103). This report deals with persons who worked on asbestos in industrial processes as their occupations. In a summary which followed extensive treatment of the subject Dr Merewether said (Blue 1/142):

There is a definite risk of the development of a diffuse pulmonary fibrosis in persons exposed to the inhalation of asbestos dust.

He went on to say that the risks vary directly as the length of employment, that there was considerable difference between the least dusty and the most dusty processes investigated with corresponding variation in the relative risk of the development of fibrosis in workers in these processes, and

With continued exposure to high concentrations of dust, the disease may be fully developed in seven to nine years … .

50 The United Kingdom Home Office published in 1930 a Report on the Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry by Dr Merewether and Mr Price, an Engineering Inspector (Judgment [42] Red 29 - 30, Blue 1/69). This Parliamentary paper reports on an investigation to decide whether pulmonary fibrosis in an asbestos worker was an exceptional occurrence or evidence of a great health risk in the industry. The Report dealt at length with investigation of fibrosis and its influence on increased mortality rate from pulmonary tuberculosis in certain dusty occupations. It was not regarded as useful to ascertain the gross number of workers who may be exposed to the inhalation of asbestos dust; the concern was with the number constantly exposed in the course of their daily work to the influence of pure or almost pure asbestos dust (Blue 1/71). The Report set out tables showing the incidence of fibrosis (Blue 1/74-75) leading to the conclusion that the length of employment and hence length of exposure to dust was outstandingly important and the age of the worker was not important on the production of fibrosis. (Blue 1/75) In these tables the incidence of fibrosis in persons employed up to four years was nil, ranging up to 80.9% in persons employed for 20 years and over. It was noted (Blue 1/78) that no definite cases of fibrosis clearly attributable to asbestos dust were found amongst workers with a less than five years exposure, but “the possibility of such cases occurring with exposure to the high concentration of dust cannot be ruled out.” The Report dealt, as the Trial Judge noted, with high production of dust in finishing processes including sawing to size (Blue 1/90-91) and with working with the material so moist as to prevent dust. The Summary and Recommendation (Blue 1/95) deal with asbestos factories and workshops and include the statement, which the Trial Judge noted (Blue 1/95):

The asbestos manufacturers are clearly confronted with the necessity of attaining conditions in their industry which will ensure much less dust in the atmosphere than can safely be tolerated in many comparable trades not using asbestos.

51 Article by Dr Wilson in Journal “Safety Engineering” published in the United States in 1931 entitled “The Very Least an Employer Should Know about Dust and Fume Diseases” (Judgment [44] Red 31-32, Blue 1/161). This short Article deals generally with the harm wrought in industry by diseases due to inhalation of dust and fumes, including a then recent decision on damages in the Supreme Court of New Jersey. Dr Wilson gave a list of conditions in which breathing dust was seriously harmful including “Asbestos and every operation in which it is used” (Blue 1/162). This Article (Judgment [45] Red 32, Blue 1/176) commented at length on a Memorandum on the Industrial Diseases of Silicosis and Asbestosis which had recently been published by the United Kingdom Home Office, and included a list of processes involving exposure to asbestos dust which were known to give rise to asbestosis. This passage referred to a number of processes in the production of asbestos and manufacture of asbestos products. Processes listed include processes of manufacture of asbestos textiles and other products and sawing, grinding and forming dry state asbestos products. The concern of this Article is with industrial processes.

52 Article by Dr Shiels, Director of the Department of Health of Victoria, in a Health Bulletin published in 1932 (Judgment [46] Red 32, Blue 1/179). This Article is entitled and deals with “Methods of Protecting Industrial Employees against Harmful Agents”, and points out the need to tell all workmen something of the dangers of the materials with which they come into contact. It lists many harmful agents and their effects, including, for asbestos, the risk of asbestosis from inhalation to asbestos miners and workers.

53 Article by Dr J. Donnelly entitled “Pulmonary Asbestosis” in the American Journal of Public Health of 1933 (Judgment [47] Red 32-33, Blue 1/233). Its concern is with the manufacturing of asbestos products and with workers in asbestos mills. The Article includes these statements (Blue 1/233):

The ‘dusty trades’ for a long time have been considered inimical to the health of employees. In spite of this it has only been within the last 10 years that ‘pulmonary asbestosis,’ a disability resulting from working in one of the dustiest of trades, has been to any appreciable extent recognized.

That exposure to the inhalation of this dust for even a comparatively short time is a definite and serious industrial hazard, has been too frequently indicated to be open to doubt. The fact that the condition when once acquired is permanent and more or less rapidly progressive is most important from the public health viewpoint.

54 A note headed “ASBESTOS DUST” in a journal entitled Safety Engineering, August 1934 (Judgment [48] Red 33, Blue 1/240) commences:

A potential asbestosis hazard is to be looked for wherever asbestos dust is created. Possible sources are the mining and milling of asbestos and the weaving, machining and mixing of asbestos and asbestos compounds. Industries included in the latter group are the manufacture of asbestos textiles and clothing, brake linings, cements and roofing materials.

55 Public Health Document Bulletin (Judgment [49] Red 33 Judgment [113]-[115] Red 63, Blue 1/320) entitled “A Study of Asbestosis in the Asbestos Textile Industry”, by W. C. Dreessen and others prepared at the direction of the Surgeon General and published by the US Treasury Department in August 1938. The Trial Judge commented that it was concerned with exposure of workers in asbestos cloth making factories, exposed day in and day out. The Report recommended that dust levels be kept to 5 million particles per cubic foot or lower; it was said that dust concentration “… may be regarded tentatively as the threshold value for asbestos-dust exposure until better data are available.” (Blue 1/371) The Trial Judge commented (Red 63-63):

114. It has been said many times in the Tribunal that if dust is visible it is probably at a greater concentration than 5 million particles per cubic foot.

115. In a circumstance in which no safe level of exposure was known, this surely should have alerted the manufacturers to a possible risk of injury.

116. Further, it was an insufficient response to say in effect, Dreesen was concerned with workers in factories – we do not have to worry about light exposures.

To approach the matter this way was to turn one’s back to the risk.

117. Similarly the defendant submitted (T178) that to ignore dose and duration of exposure is to look at only half the story.

The unspoken corollary of that submission appears to be that unless you have major exposure for a long period a manufacturer is entitled to disregard risk arising from exposure to asbestos dust.

Once again such an approach seems to be to involve turning one’s back on the possible risk.

56 Although there were endeavours in evidence to deal with and assess the dust concentration encountered by the respondent, the Trial Judge based no finding on them and I am unable to see that his Honour could have done so. The Trial Judge should be understood to have accepted the following passage in the evidence of Professor Henderson, as the Trial Judge said that Professor Henderson's approach to calculations of the respondent's exposure seemed to accord with commonsense; see (Judgment [16], Red 17):

All I would say is that in this case there has been a brief but significant episode of above background exposure including amphibolic exposure with an appropriate latency interval and in my opinion it has made a [causal] contribution.

The Trial Judge reviewed (Judgment [74-75], Red 45-46) evidence of Mr Pickford relating to the exposure standards. This passage related to exposure standards adopted, and to industrial experience later in time than events in 1961 now relevant. The Trial Judge appears to have treated this material as inconclusive, and if he did so, this was appropriate.

57 Dr J.B Hawes published a note “Dangerous Dusts” in the New England Journal of Medicine in 1937 (Judgment [50] Red 33, Blue 1/300). The principal danger which appears to have concerned Dr Hawes was litigation by working men against their employers. Dr Hawes suggested that some dusts were not dangerous, or that the dangers were overstated, or that claims had been fraudulent. Dr Hawes said, and the Trial Judge referred to this passage (Blue 1/301):

Asbestosis is a relatively new disease, concerning which we know remarkably little except it does not seem to correspond to the laws governing to silicosis in general. There is not the slightest doubt, however, in my mind at least, that asbestos dusts is the most dangerous of all dust. Asbestosis is able to produce total and permanent disability in a remarkably short length of time, even after only two or three years of exposure and occasionally less compared to the much slower and more gradual action of pure silicon and the great majority of silicates.

The fact remains, however, that asbestos is extremely dangerous and fatal, while talc, cement and other silicates are comparatively innocuous except under prolonged, intense exposure along with a very greatly lowered individual resistance.

51. It is pointed out in submissions by Counsel for the plaintiff that Mr Pickford agreed that this comment of Hawes was a sound warning for those concerned with the manufacture of asbestos products and agreed that the description of asbestos as highly dangerous was something that was appreciated in the late 1930s (T124.48-T125.5).

58 The Annual Report of the Chief Inspector of Factories of the United Kingdom for 1938, Parliamentary Paper Cmd.6081 (Judgment [52] Red 34, Blue 2/403) includes the statement (Blue 2/404):

Moreover, dust that is thought today to be harmless may, following research, be viewed in another light to-morrow. It [is not] many years ago when the dust of Asbestos was regarded as innocuous, while to-day it is recognised as highly dangerous.

Factories Act

59 W.A. Cooke an officer of Zürich General Accident and Liability Insurance Co. Ltd at Chicago, published an Article “The Occupational Disease Hazard – Evaluation in the Field “– in the journal Industrial Medicine published in the United States in 1942 (Judgment [53] Red 34, Blue 2/425). Mr Cooke said: (Blue 2/427) “In the case of the asbestos dust condition, our evaluation of the exposure should be based on the knowledge that the present toxic limit for asbestos is five million particles of dust per cubic foot of air. This is a very small concentration, so small in fact that the condition may look good even to a critical eye and still present an exposure greater than this low limit.” Mr Cooke later said: “In the case of asbestos dust, however, and this holds with even more certainty for dusts high in free silica content, the toxic limit is so low that the only safe procedure is to have recourse to actual dust determinations.” Mr Cooke’s subject was the evaluation of occupational disease hazard in workplaces.

60 The Trial Judge referred to several articles which associated asbestos with the development of carcinoma of the lung, two of them published in 1935 (Judgment [54] Red 34-35).

61 The Trial Judge referred to a text Occupational Tumours and Allied Diseases published at Springfield Illinois in 1942 by Dr W.C. Hueper (Judgment [55] Red 35, Blue 2/431). After referring to an enormous increase in the production of asbestos and to a number of industries in which there is occupational contact with asbestos Dr Hueper said (Blue 2/434):

Conditions and Types of Exposure.

The development of a pulmonary asbestosis depends, according to Bauer, upon the duration and degree of exposure to asbestos dust, and on a certain personal disposition. …

Asbestosis usually develops after an exposure of three to fifteen years (Martz), but may not produce subjective symptoms until many years after the cessation of exposure to asbestos material.

There is an incidence of lung cancer in asbestosis of the lung which is definitely excessive.

62 In this context the Trial Judge said (Judgment [56] Red 36) that evidence of Mr Pickford shows that as of 1942:

… there was huge amount of literature concerning the association between asbestos and lung cancer.

63 An Article in Industrial Medicine published in 1943 (Judgment [57] Red 36, Blue 2/440) dealt with minimum requirements for safety and industrial health in contract shipyards for the United States Navy Department and the United States Maritime Commission, relating to any job in which asbestos dust is breathed, including handling, sawing and cutting asbestos mixtures included segregation of dust in work and special ventilation or wearing special respirators. This Article related to industrial hazards in naval contract shipyards.

64 The Report of the Director-General of Public Health, New South Wales 1948 (Judgment [58] Red 36, Blue 2/513) included under investigations in dusty trades (Blue 2/516) an account of an event in which the Department had advised substitution of other material for coarse asbestos used to reduce loss of heat from molten metal in a crucible in a steel moulding process. This included

… the finer particles … spread throughout the building when it was shovelled on to the metal. The exposure to asbestos was intermittent and of short duration, about five minutes at each pouring, and as at the time, asbestos was only being used two or three times a week, the dust hazard was considered to be small.

65 Article “Occupational Factors in Pulmonary Dust Disease” by Dr G.C. Smith in the Medical Journal of Australia in 1950 (Judgment [59] Red 37, Blue 2/544) refers to production of severe pulmonary disease from asbestos. After discussing the periods of exposure before the appearance of a disabling pneumonoconiosis Dr Smith said (Blue 2/545):

Asbestosis apparently occurs after a shorter exposure. Thus Wyers (1949), who investigated 115 fatal cases of asbestosis, found the average exposure had been 10.4 years.

Under conditions of intermittent exposure it is more difficult to predict the likely effect on the lungs than if the exposure was continuous, but the severity of any dust hazard is usually lessened in such circumstances. This, however, might not apply with very high intermittent exposures.

66 The Trial Judge referred to an article published by the American Medical Association Archives of Industrial Hygiene and Occupational Medicine in 1952 (Judgment [60] Red 38, Blue 2/562) containing a table of cases of carcinoma of lungs among 4000 asbestos workers in the United States in a period of 10 years, with commentary on the incidence of pleusal mesothelioma.

67 An article by Dr A.I.G. McLaughlin, a Medical Inspector of Factories in the United Kingdom (Judgment [61] Red 38, Blue 2/565) refers to dust diseases caused by inhalation of dust and expresses a lack of confidence in the validity of maximum allowable concentrations of dust of which lists have been drawn up in various countries; Dr McLaughlin pointed out that there were differences in individual reaction to dust, the reasons for which were not accurately known.

68 Dr Richard Doll published an article “Bronchial Carcinoma: Incidence and Aetiology” in British Medical Journal in 1953 (Judgment [62] Red 39-40, Blue 2/575) and commented (Blue 2/580) that:

The classical method leading to the isolation of chemically pure carcinogens is the observation of specially high cancer risks in specific occupations. With lung cancer, exceptional risks have been recognized in several unrelated industries

69 An Editorial Staff Article in Manufacturing and Management, a magazine published in Australia in 1956, refers to the dangers of asbestosis in contexts referring to occupational hazards (Judgment [63] Red 40, Blue 2/627). Protective equipment is referred to as "Industrial equipment available for protection against dust".

22 It wasn’t believed that working with asbestos sheeting presented a significant health hazard.

91 In reviewing these publications the Trial Judge found (Judgment [90] Red 51) “The picture is one of knowledge increasing overtime".

92 The Trial Judge then reviewed evidence given by Professor D. A Ferguson in other litigation, Olson v CSR Limited & Anor DDT 72 of 1994 (Blue 3/1048), and cited a number of passages in that evidence (Judgment [91] & [92] Red 51 & 52). The first passage cited is, it appears to me, the most important:

In 1960, the only concern of occupational physicians would have been with people who - what I call, primarily asbestosis workers who worked in some sort of asbestos process, whether from mining or milling or transport or manufacture or installation or removal of asbestos products, day in day out eight hours a day, in conditions of asbestos dust and in those days, the sort of conditions that gave rise to asbestosis were reasonably well worked out.

… and so there was a realisation that it was heavy exposure over some years, that gave rise to asbestosis.

93 The Trial Judge also referred to passages in which Professor Ferguson dealt with the state of knowledge of lung disease from 1954 onwards, and with the response to the Wagner paper published in 1960.

94 The Trial Judge also set out (Judgment [94] Red 53) the following passage from Professor Ferguson's evidence:

Q. Do you agree that anyone with a modicum of knowledge of the risks of inhalation of asbestos knew by the mid-60s that there was risk to health from sawing of asbestos cement boards containing crocidolite?

Q. I suggest to you that by the mid-1960s anyone with a modicum of knowledge had concern about the risk to health of anyone who was sawing up asbestos cement boards containing crocidolite. Do you agree or not.

I certainly recall being concerned that people in - who were working substantially full-time in asbestos cement factories sawing up asbestos cement products, I was concerned about that, because those people, unless the product was wet or unless there was ventilation, might take in large quantities of dust. But I didn’t translate that concern to end-users of asbestos cement products.

95 In further passages in evidence which the Trial Judge set out Professor Ferguson said to the effect that in the mid-1960s when people were sawing up dry asbestos cement in factories full-time, the risk known was largely of asbestosis and there had been no report of occupational cases of mesothelioma before 1965. Professor Ferguson was first concerned with the prospect of a risk of mesothelioma from crocidolite dust out of asbestos cement sheets in the early 1980s, and he spoke of the emergence of acceptance that crocidolite caused mesothelioma in Britain, still doubtful in 1965, but not doubted among academics working specifically in this field. The Trial Judge set out a number of other passages from the evidence of Professor Ferguson, the concluding passage being (Judgment [96] Red 56):

To the best of my recollection, occupational physicians were of the opinion in the 1960s and 1970s that there was no convincing medical literature showing any respiratory problem arising from the end-use of asbestos cement building products.

The relevance of these opinions is self evident. The issue is whether they should be accepted in the light of the bulk of other material available.

96 To my reading it is plain that the Trial Judge was fully seized of the purport and the importance of Professor Ferguson's view; and as paras [97] and [98] of the judgment show, the Trial Judge regarded that view as outweighed by other material.

97 The Trial Judge referred (Judgment [93] Red 52-53) to evidence given by Dr Maurice Joseph in other litigation, Bradley v James Hardie & Coy Pty Ltd & Anor DDT 58 of 1995 (Blue 5/1551) about the Newhouse and Thompson article published in the British Journal of Industrial Medicine in 1965, relating to knowledge in 1964 and 1965 of "… the possibility of asbestos related diseases in people who were handling asbestos apart from those involved in the manufacture and working in asbestos factories." Dr Joseph’s evidence was to the effect that there was knowledge of the association of crocidolite with mesothelioma in Wagner’s paper in 1960 and in the McNulty paper in 1962, that knowledge was gradually being accumulated that there was a relationship (Judgment [93] Red 53):

But this knowledge by 1965 had not filtered through to the industry to the stage where it was thought that the casual handling of asbestos sheets would be dangerous.

98 The Trial Judge also referred to the statement of Dr Brian Gandevia in evidence in McCusker v James Hardie & Coy Pty Ltd DDT 179 of 1996 (Judgment [97] Red 56, Blue 5/1657) to the effect that the existence of mesothelioma as a specific entity was not accepted by the world's leading cancer authority prior to mid-1960s, and that the relationship of mesothelioma to asbestos was not appreciated prior to the mid-1960s with the exception of a few deeply involved experts; and further evidence of Dr Gandevia dealing with the emergence of knowledge in the 1970s.

99 In summarising the case which the appellant put in reliance on this material the Trial Judge said (Judgment [97] Red 57):

The submission developed in the light of these materials is to the effect that if the [appellant] had sought the advice of Professor Ferguson or Dr McNulty or Dr Gandevia about the risk of injury in 1960 or 1961 to an end user of asbestos cement products they would have been informed that there was no such risk. It is submitted that such a risk of injury to the [respondent] or indeed to any end user of the products was not foreseeable at that time.

100 The Trial Judge referred at length to transcripts of evidence given in other cases by Professor D. A. Ferguson, on which the appellant relied heavily. As appears from passages in the judgment at paras [98] and [99] to which I referred to earlier, the Trial Judge did not accept Professor Ferguson's evidence. It is not clear what is the qualification to which the Trial Judge referred to in para [98]. The plain position is that his Honour did not accept Professor Ferguson's evidence at all. If this was an error, it was not an error in point of law. However not accepting Professor Ferguson's evidence is not a basis on which the Trial Judge could or did dispose of liability in the respondent’s favour. The Trial Judge's reason for so finding, to be gathered from paras [98] and [99], is that there was simply too much other evidence from all over the world published over the years to permit Professor Ferguson's evidence to be accepted; there was simply too much material demonstrating the known risk of asbestos for the appellant to be permitted to rest behind Professor Ferguson's view.

DISPOSITION OF GROUNDS 1, 2 and 3 - FORESEEABILITY

101 The reasons which the Trial Judge gave at paras [98] and [99] and the course of the judgment generally show that the Trial Judge conflated all persons exposed to risks of injury associated with inhalation of asbestos dust and fibres, and used the results of this consideration to reach a conclusion about the reasonable foreseeability of a risk of injury to the respondent. In my opinion this was an error in point of law, because the material which the Trial Judge considered in reaching this conclusion does not provide a basis for concluding that a risk of injury was reasonably foreseeable in relation to a person whose exposure to asbestos was of the extremely low intensity of the respondent's exposure. Almost all the references to exposure relate to occupational exposure and to continuing situations of exposure, and while they vary greatly in periods of time and intensity, they were all of a completely different and much greater order of intensity than the exposure of the respondent. It is only in the last of the publications reviewed by the Trial Judge, those of J. C. Wagner and others in 1959 and 1960, that there was any reference to sufferers from asbestosis or carcinoma other than persons occupationally exposed to asbestos. The conclusion that risk of injury to the respondent, or to a person in the respondent's position, was reasonably foreseeable is not a conclusion which could be reached by reasonable persons finding the facts, on the material which the Trial Judge considered. The concessions attributed to Mr Pickford do not add anything of substance: most of them have little connection with foreseeability in relation to the class of which the respondent is a member. Indeed, unless the case of the respondent and persons in his circumstances is conflated with cases of altogether different intensity of exposure, there is not in my opinion any material upon which, avoiding hindsight and judging matters from the point of view of the information of which the appellant ought to have been aware in 1961, the Trial Judge could find that there was any exposure to risk at all.

102 For these reasons I would uphold Ground 1. Ground 2 does not require disposition but I would say that the Trial Judge’s reasons appear in a way which I regard as reasonably clear, no less so because they are not, in my opinion, correct.

103 It appears from Judgment para [99] (Red 57) that it was part of the reasoning upon which the Trial Judge relied to reach the conclusion that Professor Ferguson's view was outweighed by other material demonstrating a known risk of asbestos that there was no evidence from the appellant itself about its knowledge or attitude to published articles or to risks undertaken by users of its product, and that none of its records had been produced. It was not part of this process of reasoning that the Trial Judge supposed that the appellant had some further material showing its knowledge or attitude which it was in a position to produce and decided to withhold. The Trial Judge's observation does not, to my reading, go so far as to adopt the reasoning process authorised by Jones v Dunkel (1959) 101 CLR 298 in which an inference adverse to a party in a position to call evidence on the subject and otherwise available can be more readily drawn where the party does not give evidence to the contrary. It was relevant, when expressing the view that there was "simply too much" to refer to the fact that the appellant produced no material about its knowledge or attitude to the articles and risks. To my mind there is a distinction between articulating the absence of countervailing material and drawing an adverse inference. Ground 3 does not require to be disposed of, but if it did I would not uphold it.

SCOPE OF DUTY. WARNING. GROUNDS 4, 5 and 6

104 When dealing with the reasonable response to the risk of injury which his Honour had found was foreseeable, the Trial Judge said (Judgment [118] Red 64):

118. … To do nothing in the circumstances identified earlier, when a warning was a simple thing to attach to the sheets, was unreasonable.

119. The defendant was already placing a stamp on the A/C sheeting advertising the product as Wunderlich Durabestos. It seems to me to require very little to add another stamp warning people not to breathe in the dust generated by working the product, because if they did they might become very sick and even die. It may be to affix such a stamp would adversely affect sales. It is not hard to imagine that this might occur. It is a relevant consideration. On balance, however, it could not be the deciding factor for a reasonable person.

105 Although his Honour did not spell out the warning which in his view should have been stamped on asbestos cement sheeting, it should be understood from Judgment [119] that the warning should have been to this effect:-

Warning. Do not breathe in the dust generated by working this product. If you breathe in the dust you might become very sick and you might even die.

As his Honour observed in the first paragraph of the judgment, “The basic allegation of negligence is failure to warn about the risks of breathing in asbestos dust.” In the particulars of negligence in the Statement of Claim filed on 11 March 2005 there are at least seven references to failures to warn, most of them (particulars (a), (b), (c) and (d)) referring to failure to warn of risks; see too particulars (j), (k) and (l); the closest approach to precision was particular (k):

(k) Failing, during the course of production of the materials, to place warnings of the health risks from the inhalation of asbestos dust and fibre on the materials and the packaging of the materials.

The formulation in the judgment appears to relate most closely to particular (k).

106 Passages in the evidence of Mr Stewart to which the Trial Judge referred at Judgment paras [18], [19] and [20], dealt with notification of hazard by labelling, and Mr Stewart said (Judgment [19] Red 19E):

… Given that such label would effectively communicate to the end user that the product contained asbestos, that asbestos was harmful if inhaled, and the following procedures could be used to mitigate or eliminate the risk. Given that the label did all these things, effectively then a label such as that should have been attached in my opinion in 1960 (T61.42-47).

Graham Barclay Oysters Pty Ltd v Ryan

107 A warning formulated in the way I have spelt out from Judgment [119] is only nominally a warning; it does not indicate any measure which the recipient was warned he should take in order to remove or control the risk, and would have no operation unless it acted as a prohibition. The Trial Judge's findings mean that the appropriate response to risk was to tell those who saw the warning that no reasonable person would use the product at all. There was no reference to measures which might have controlled or reduced the risk, such as equipment to filter inhalation, or wetting the sheets when cutting them, or other techniques to control production of dust. There was no more than a strong statement of adverse outcomes. Unhappy experience tells us that even the strongest and clearest warnings that a product should not be used are disregarded by many who use them.

108 Selection of a warning stamped on the sheet as an appropriate response is related to the position of the respondent as a member of a class of occasional casual users who do not participate in industrial commercial applications of the product. Conveying the warning by stamping it on the product involves a requirement for simplicity and brevity of the warning. If the class of persons in contemplation were exposed to risk in commercial or in industrial situations such as working on the sheeting in factories or using it for the construction of buildings, such a brief warning would be of no real value and any warning which it was appropriate to circulate would state at greater length, in the form of an accompanying pamphlet, how the material was to be handled in industrial and factory processes and what precautions were to be taken. The choice of the kind of warning which the Trial Judge regarded as appropriate is related to contemplation of the position of the occasional casual user.

109 There is no suggestion in the judgment or in the particulars that there was in 1961 any practice of giving any warnings about use of sheeting. The Trial Judge's decision would establish that the practices in the industry at the time were not reasonable, but were negligent.

110 In accordance with Mason J’s opinion in Shirt at 47, the response to be made by the reasonable man to reasonable foreseeability of risk and to the duty of care has been consistently treated as a question for the tribunal of fact; and this extends to decision whether the reasonable response is to do nothing. For this reason it is difficult to see the challenge to the Trial Judge's decision that a warning should have been given, and to the terms of the warning, as raising a point of law subject to appeal under s.32(1) of the Dust Diseases TribunalAct. It would be necessary to show that the Trial Judge's conclusion on breach of duty was one to which reasonable minds could not come on the evidence.

111 As my observations show, I find it difficult to see how the Trial Judge’s conclusions on the appropriate response to what his Honour regarded as reasonably foreseeable risk of injury can be correct. However my opinion on Ground 1 makes this question one on which it is not necessary to come to a conclusion; if disposition were required the limitation of appeals to points of law appears to mean that the Trial Judge’s conclusions are beyond appellate review. In my opinion it is not necessary to dispose of Grounds 4, 5 and 6.

ADMISSIBILITY OF EVIDENCE

112 Ground 7 in the Supplementary Notice of Appeal relates to evidence of the respondent which is relevant to causation. The evidence and the argument relating to it at the trial are recorded (Black 12). In a passage in evidence in chief where the respondent's Counsel adduced his evidence relating to the work which the respondent carried out the following passage appears:

Q. What sort of material were you gathering up with your hands and putting in the -
A. Fibro.
Q. If there had been a warning on the fibro sheet – A --- I would never have used it.

MR FERNON
My learned friend's question had not quite completed before the witness answered, but putting that to one side if I may, my learned friend’s question is in effect seeking a self-serving response from the witness which, in my respectful submission, is inadmissible. If it be admissible, it nevertheless be a piece of evidence that to which such little weight could be put, that it ought be excluded.

HIS HONOUR
The weight question we can deal with. Why is it inadmissible just because it is self-serving?

MR FERNON
It is inadmissible because it is of no probative value your Honour.

HIS HONOUR
All right, is there anything else?

MR FERNON
No your Honour.

113 There is no other evidence of the respondent dealing with the effect which a warning on the sheet would have had, or showing what he understood a warning to be. His answer cut across his counsel's question, so that there was in truth no complete question and no question, but can be understood as evidence to the effect that he would not have used the sheet if there had been any warning at all printed on it. It was within the Trial Judge's discretion to require the question to be fully stated and to require the answer to await the full question and relate to it. However the appellant's counsel did not in support of the obligation ask for this to be done: he put that to one side, and relied on other grounds. The evidence which the Trial Judge allowed is intelligible and relevant, and the absence of some discretionary intervention by the Judge was not an appealable decision as to the admission or rejection of evidence within s.32(1).

114 The appellant contended on appeal that this evidence was inadmissible as opinion evidence for the purpose of Evidence Act 1995 (NSW) s.76 but not satisfying the requirements for admissibility of opinion evidence under ss.77, 78 and 79 of the Evidence Act. (Indeed it does not fall within ss.77, 78 or 79).

115 Where the state of a person's mind is a relevant fact, there can I think be no doubt of the admissibility of evidence by that person about the state of his mind. I see no room for a supposition that such evidence is opinion evidence. It is a commonplace for a person to give evidence about what his state of mind would have been in some contingency which did not happen; for example, that if he had known some fact, he would not have decided to act as he actually did. In any case where the absence or the terms of a warning is said to show negligence I find it difficult to suppose that the evidence of a person complaining about the warning would conclude without that person’s being asked what effect a warning would have had, whether by that person's own counsel or in cross-examination.

116 In Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934 Kirby J at 1941 [40] and [41] narrated the events, in a case where the absence of a warning sign was said to show negligence, in which the Trial Judge raised the lack of evidence about the subject. The plaintiff's evidence on the subject, including cross-examination, is set out in the judgment of McHugh J. and others at 1936-1937[13]. The Trial Judge concluded that the plaintiff was mistaken in her evidence about the effect of a warning notice. Kirby J. said (at 1943 [54]):

[54]

117 In my opinion the observations of Kirby J. and the decisions to which his Honour referred show that, notwithstanding concerns about the value of such evidence and the weight to be accorded to it, there is a well-established practice in Australian courts of admitting such evidence. If the evidence is admitted, its weight remains to be addressed by the court, as Judge Duck observed during argument on the objection (Black 12). However the weight to be accorded to it is a question of fact, which must be addressed later than the admissibility of the evidence, to which Ground 7 is directed.

118 In All State Life Insurance Co. v Australia and New Zealand Banking Group Ltd (No.5) (1996) 64 FCR 73 Lindgren J. ruled on objection to passages in an affidavit of a witness who gave evidence of the effect which would have been produced, if he had known some details about guarantee liabilities, on a recommendation he made relating to an investment. As well as stating that he would not have made a recommendation in the circumstances, the passage under objection went on to state the considerations which would have caused him not to make the recommendation. In support of the objection it was contended that the statement in the affidavit was opinion evidence under the general law of evidence and was rendered inadmissible by s.76 of the Evidence Act (Cth) which is in the same terms as s.76 of the Evidence Act (NSW). In Lindgren J.'s view the passage under objection did not express an opinion to which s.76 applied. Lindgren J. observed (at 76) to the effect that there were no authorities dealing squarely with the objections raised, but went on to review a number of decisions, including decisions of this court, to which he had been referred. Lindgren J. said at 75-76:

The expression “opinion” is not defined in the Act. In the context of the general law of evidence, “opinion” has been defined as “an inference from observed and communicable data”: Wigmore on Evidence , J H Chadbourn (ed), Little, Brown & Co, 1978, vol 7, §1917; and see J D Heydon, Cross on Evidence , 5th ed, Butterworths, Sydney, 1996, para [29010], p 782; Australian Law Reform Commission, Interim Report on Evidence , ALRC 26, 1985, vol 2, para 96, pp 168-9. The origin of the courts’ aversion to evidence of opinion is in the common law's concern to receive the most reliable evidence; cf Cross , supra, para [29001], p 781. One might be excused for thinking that often the most reliable evidence, and certainly the most obvious evidence, of what a person would have done if facts had been different from what they were, would be that person's own evidence on the matter.

Paragraph 27 does not state an inference drawn or to be drawn from observed and communicable data. It purports to be “direct” evidence from the person uniquely placed to give it, of what that person would have done in a hypothetical situation. This is not “opinion” of the kind against which the general rule against the admissibility of evidence of opinion is directed.

In one sense there can never be “direct” evidence of what a person would have done in a situation different from that which occurred. But where that is what is to be proved, the person in question is better qualified than all others to give evidence on the matter. To exclude his or her evidence would be to exclude the “most direct” evidence available.
Mr Pembroke SC submits that Mr Ericson is entitled to give evidence of what his practice was, of what disclosures he habitually looked for when reading prospectuses and what disclosures he looked for on the occasion in question, and, no doubt, of other aspects of his relevant mental framework in late 1988 when he read the Linter Textiles prospectus, but that he must stop short of saying what he would have done if there had been disclosure. According to the submission, to take this last step is to trespass into the prohibited territory of opinion evidence. I do not accept the submission. To exclude such evidence would be contrary to the “most reliable evidence” objective of the opinion rule. In my view, such evidence belongs to a different area of discourse from that with which the opinion rule is concerned.

119 Lindgren J. pointed out with care (at 78) the distinction between admissibility and weight. Lindgren J. referred to several decisions which, while not dealing directly with the question whether evidence of the kind under consideration is opinion evidence, clearly showed contemplation that evidence of that kind is admissible; and in some circumstances courts have expressed views which seem to show that they regarded the tender of such evidence as desirable. Decisions referred to by Lindgren J. included Commercial Union Assurance Co. of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 where Handley JA commented, rather severely, on the absence of evidence of that kind, Dominelli Ford (Hurstville) pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471 at 483, and Huntsman Chemical Co. Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242 where Dominelli Ford was treated as providing guidance.

120 In Hughes Aircraft Systems International v Airservices Australia (No. 3) (1997) 80 FCR 276 Finn J referred to and followed the decision of Lindgren J. in All State Life Insurance Co. v Australia and New Zealand Banking Group Ltd (No. 5), as a matter of comity.

121 On behalf of the appellant it was contended that the evidence should not have been admitted and that the decision of Lindgren J. should not be followed on grounds related to the "best evidence rule". Observations on the limited value, and self-serving and hindsight nature of evidence of this kind have considerable force, in my view where they are directed to the weight of such evidence and its place in a finding of fact, but do not detract from the character of such material as the only direct evidence available of the state of the person's mind, to take its place with other material which can be the basis, and could well according to circumstances be a better basis for inference and conclusion about that state of mind. Counsel observed on the references in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 745 [87] (Heydon JA) to the limited significance which evidence of an expert may have, and the danger of evidence of little or no real weight exerting excessive influence on the tribunal finding facts. Justice Gummow has referred to questions of proof of this kind in Rosenberg v Percival (2001) 205 CLR 434 at 461-463 [87]-[89]. See too Callinan J. at 504 [221] and, in Vairy v Wyong Shire Council (2005) 80 ALJR 1 at 41 [226] (Callinan and Heydon JJ), referring to lack of reliability.

122 I do not think that this Court should depart from what I regard as an established state of opinion in the Federal Court on cognate legislation unless there are clear grounds for concluding that those decisions were wrong. I would respectfully say that my reluctance is enhanced by the reputation and standing of Lindgren J. and of Finn J. as well as by the number of instances including decisions in this Court, in which evidence generally of this kind has been treated as admissible, or its absence has been adversely commented on, although without examining whether s.76 relating to opinion evidence was applicable.

123 At the heart of the controversy, I do not find it possible to see evidence given by a person about his state of mind, in an actual or hypothetical situation, as an opinion. The state of a person's mind is a fact and remains a fact whether what is under the discussion is an actual state of mind, or the state in which a person's mind would be in some contingency which has not happened. The strongest theme of dissatisfaction with such evidence is its lack of reliability because of its self-serving nature, given as the evidence is when it is known with hindsight that the subject is of importance to the party who gives the evidence. This source of dissatisfaction is not in my opinion a reason in principle for rejecting the evidence; if it is relevant it is admissible, and this source of dissatisfaction is to be met by taking appropriate care in deciding whether the evidence is to be believed, which remains a decision of fact. One point at which endeavours to examine such evidence in terms of its being an opinion fails is the difficulty of saying what is the area of expert knowledge to which the opinion relates. It is not possible to define that area of expertise in relation to evidence given by any particular party about what he would have done in stated circumstances, and it is not possible to suppose what study or knowledge might equip a person to give an opinion about it. Although "opinion" is not defined in the Evidence Act, and as a concept in the general law of evidence cannot be exhaustively defined, it is my view that the word "opinion" where it appears in s.76 does not include evidence of this kind.

124 In my opinion Judge Duck was not in error in admitting the evidence. If disposition of Ground 7 were necessary for disposition of the appeal, I would not uphold it.

CAUSATION

125 Grounds 8, 9 in 10 relate in different ways to causation. It follows from my disposition of Ground 7 that there was in my opinion some evidence to support the finding referred to in Ground 8.

126 With respect to causation of the respondent’s disease the Trial Judge said (Judgment [124] Red 65-66):

CSR v Wren

127 The Trial Judge earlier reviewed the evidence of Professor Henderson, in terms which bear upon causation, including an opinion, in a passage of Professor Henderson's report (Blue 7/2373) which the Judge set out (Judgment [13] Red 16), in these terms:

… it is my assessment that Father McNeill’s brief ”handyman” - type exposures to asbestos over a period of a few to several days in about 1960 and 1961 in the form of domestic renovation/extension work, made a significant causal contribution towards the induction of his mesothelioma, by way of an incremental causal-contributory effect in excess of and on top of any underlying or ”background” risk of mesothelioma.

128 The Trial Judge's conclusions on causation in para [124] were based on evidence, and the reasons stated indicate, to my mind in a clear way, the grounds upon which the findings were made. In my opinion there is no error in point of law in resolving the body of evidence bearing on causation, one way and another, in favour of the respondent as the Trial Judge did. These were not findings which a reasonable tribunal could not make, if it had earlier been determined, contrary to my opinion, that there was a duty of care. I would not uphold these Grounds 8, 9 and 10, if disposition of them were necessary.

ORDERS

129 For reasons stated by Handley JA at para [7], the Court’s order should provide for further consideration of restitution.

In my opinion the Court of Appeal should allow the appeal and should order:

1. Appeal allowed with costs
2. Set aside the decision verdict and judgment of the Dust Diseases Tribunal of 5 September 2005, and in lieu thereof give judgment for the defendant in the Tribunal with costs.
3. The parties are directed to file in the Registry within 7 days their agreed orders dealing with restitution.
4. If there is no agreement and agreed orders are not filed, the appeal will be listed before Bryson JA at 9.30am on 4 July 2006 for directions relating to restitution.
5. The respondent to have a certificate under the Suitors' Fund Act
1951.

**********

26/10/2006 - Error - Paragraph(s) [38] Delete "manufacturer of" and substitute "manufactured"

Citations

Seltsam Pty Ltd v Mcneill [2006] NSWCA 158

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CITATION:	SELTSAM Pty Ltd v McNEILL [2006] NSWCA 158 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	15/12/05
JUDGMENT DATE:	26 June 2006
JUDGMENT OF:	Handley JA at 1; Tobias JA at 8; Bryson JA at 9
DECISION:	1. Appeal allowed with costs; 2. Set aside the decision verdict and judgment of the Dust Diseases Tribunal of 5 September 2005, and in lieu thereof give judgment for the defendant in the Tribunal with costs.; 3. The parties are directed to file in the Registry within 7 days their agreed orders dealing with restitution.; 4. If there is no agreement and agreed orders are not filed, the appeal will be listed before Bryson JA at 9.30am on 4 July 2006 for directions relating to restitution.; 5. The respondent to have a certificate under the Suitors' Fund Act 1951.
CATCHWORDS:	NEGLIGENCE - liability of manufacturer to end user - asbestos cement sheeting - in 1961 the plaintiff, a priest, worked with asbestos cement sheeting purchased retail by a relative and manufactured by defendant and was exposed to asbestos dust and fibres - work totalled about 12 hours over several days - extension to his sister's house - no other exposure to asbestos dust and fibre apart from ordinary environmental exposure - in 2003 plaintiff became ill and mesothelioma diagnosed - Dust Diseases Tribunal found, on extensive review of evidence including publications about knowledge of risks related to asbestos in 1961, that defendant owed duty of care to plaintiff and was in breach by failing to print warning on each sheet - on review of evidence, held that the conclusion, on test in Shirt v Wyong S.C. that there was a foreseeable risk of injury to class of persons including the plaintiff and hence a duty of care to the plaintiff, on state of available knowledge in 1961, was not reasonably available - held no duty of care - consideration of establishing relevant class of persons for purposes of foreseeability and casual end users not conflated with persons more intensely exposed in industrial occupations - consideration of Trial Judge's decision on need to print warning on sheets - admissibility of plaintiff's evidence on how a warning would have affected his conduct.
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989 (NSW) ss. 25(3), 32(1) Evidence Act 1995 (Cth) s.76 Evidence Act 1995 (NSW) ss.76, 77, 78 and 79 Factories Act 1937 (UK) s.47 Supreme Court Act 1970 (NSW) s.75A
CASES CITED:	All State Life Insurance Co. v Australia and New Zealand Banking Group Ltd (No.5) (1996) 64 FCR 73 Bourhill v Young [1943] AC 92, 98-9, 101, 102, 104, 106, 108 and 117 Bradley v James Hardie & Coy Pty Ltd & Anor DDT 58 of 1995 Bunyan v Jordan (1937) 57 CLR 1, 11-12 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 Chester v Waverley Corporation (1939) 62 CLR 1, 33 Commercial Union Assurance Co. of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Dominelli Ford (Hurstville) pty Ltd v Karmot Auto Spares Pty Ltd (1992) 38 FCR 471 EM Baldwin & Son Pty Ltd v Plane [1998] 17 NSWCCR 434 Father Robert McNeill v Seltsam Pty Limited [2005] NSWDDT 43 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Home Office v Dorset Yacht Co. Ltd [1970] AC 1004 Hoyts Pty Ltd v Burns (2003) 77 ALJR 1934 Hughes Aircraft Systems International v Airservices Australia (No. 3) (1997) 80 FCR 276 Huntsman Chemical Co. Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242 Jaensch v Coffey (1984) 155 CLR 549 Jones v Dunkell (1959) 101 CLR 298 Julia Farr Services Inc v Hayes [2003] NSWCA 37, 25 NSWCCR 138 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 McCusker v James Hardie & Coy Pty Ltd DDT 179 of 1996 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 Nielsen v Seltsam Pty Ltd DDT 280 of 2003 Olson v CSR Limited & Anor DDT 72 of 1994 Palsgraf v Long Island Railroad (1928) 162 NE 99 Rootes v Shelton (1967) 116 CLR 383 Rosenberg v Percival (2001) 205 CLR 434 Seltsam Ltd & Manufacturers Mutual Insurance Ltd v Minahan (1996) 13 NSWCCR 410 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 Tame v State of New South Wales (2002) 211 CLR 317 TCN Channel 9 Pty Ltd v Antoniadis [No 2] (1999) 48 NSLWR 381 Vairy v Wyong Shire Council (2005) 80 ALJR 1 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Seltsam Pty Ltd - Appellant Robert Alban McNeill - Respondent
FILE NUMBER(S):	CA 40790/2005
COUNSEL:	B. Walker SC / G. Parker - Appellant J. Rush QC / A. McSpedden - Respondent
SOLICITORS:	Makinson & d'Apice, Sydney - Appellant Turner Freeman, Parramatta - Respondent
LOWER COURT JURISDICTION:	Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S):	DDT 84/2005
LOWER COURT JUDICIAL OFFICER:	Judge Duck
LOWER COURT DATE OF DECISION:	05/09/2005
LOWER COURT MEDIUM NEUTRAL CITATION:	[2005] NSWDDT 43