Stevedoring Finance Committee v Henderson
[2000] VSCA 216
•16 November 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 6735 of 1997
| STEVEDORING INDUSTRY FINANCE COMMITTEE |
| Appellant |
| v. |
| PAUL HENDERSON (representing the estate of BRIAN JOHN CRIMMINS, deceased) |
| Respondent |
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JUDGES: | WINNEKE, P., CHARLES and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28-29 June 2000 | |
DATE OF JUDGMENT: | 16 November 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 216 | |
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Negligence – Breach of duty of care – Statutory authority – Foresight of injury – Mesothelioma – Whether injury was caused by breach of duty – Authority's power to protect workers.
Practice and Procedure – Amendment of notice of appeal – Interests of justice – No exceptions to jury charge – Application to amend rejected.
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APPEARANCES: | Counsel | Solicitors |
For the Appellant | Mr C. Gee Q.C. | Blake Dawson Waldron |
| For the Respondent | Mr J.T. Rush, Q.C. Mr M.D. Wilson | Slater & Gordon |
THE COURT:
This is the resumption, pursuant to High Court remitter, of an appeal which was heard in this Court between 25 and 28 May 1998 and partly determined on 31 July 1998. The appeal had been brought by the appellant against the verdict of a jury in favour of the then respondent Brian John Crimmins ("the plaintiff" or "the deceased") after a trial which lasted for some 17 days in March and April 1998. The deceased, who died shortly before this Court published its judgment in July 1998, had sued the appellant for injury and loss alleged to have been caused by the negligence of the appellant’s statutory predecessor ("ASIA") whilst the deceased was working on the wharves in the Port of Melbourne between 1961 and 1965. In 1997 he contracted malignant mesothelioma which caused his death in 1998. The plaintiff’s statement of claim alleged that ASIA, as the statutory authority in control of the wharves pursuant to the Stevedoring Industry Act 1956 (Cth.)("the Act"), owed him a common law duty of care which it breached by failing to take reasonable precautions to prevent him from being exposed to the harmful effects of the inhalation of blue asbestos dust whilst he was discharging bagged asbestos from the holds and lockers of ships in the Port of Melbourne. The appellant denied liability. It contended that, as the statutory successor to ASIA, it inherited no liability which might have accrued to ASIA; that, in any event, it owed no common law duty of care to the plaintiff; and that if it did owe such a duty it had not acted in breach of it so as to cause damage to him. It also contested the quantum of damages claimed on behalf of the plaintiff. The trial judge (Eames, J.) ruled in favour of the plaintiff on the "inheritance of liability" issue and a jury was empanelled to try the remaining issues. At the end of the evidence the appellant indicated that it wished to submit to the judge that, on the evidence, no case had been made that ASIA owed any relevant duty of care to the plaintiff. Because of the urgency of the case and the complexity of the issue, the parties consented to the somewhat unusual course of addressing the jury on the assumption that a duty of care existed and leave was reserved to the appellant – in the event that a verdict in favour of the plaintiff was returned – to move non obstante for judgment on the basis that no duty of care existed. Counsel for the appellant, in accordance with this agreed procedure, then addressed the jury on the basis that a duty of care did exist but submitted that, on the evidence, the jury should not be satisfied that the evidence established a breach of that duty because ASIA could not reasonably have foreseen that there was, in the light of knowledge then existing, a risk of injury to the plaintiff which it should have taken steps to avoid beyond those which it had taken. Following an address by counsel for the plaintiff, the judge charged the jury over a period of two days. The jury returned a verdict in favour of the plaintiff and assessed damages in the sum of $833,622. Thereafter his Honour entertained argument on the question of the existence of duty. He found such a common law duty did exist in the appellant and then entered judgment for the plaintiff in accordance with the jury’s verdict, less an amount of $100,000 which had already been received from other defendants.
In accordance with the agreed procedure, the learned judge asked the jury to answer two questions:
(i) Was there any negligence on the part of the defendant which was a cause of the plaintiff’s injury, loss and damage?
(ii) If yes, in what total sum do you assess the plaintiff’s damages?
The duty of care which, for the purposes of addresses and charge, the jury was asked to assume reposed in ASIA, was a duty to take reasonable care not to expose the plaintiff to foreseeable risk of injury of the kind which the plaintiff suffered. Although the parties addressed the jury on the basis that such a duty of care existed for the purposes of answering Question 1, the issues of breach and causation were keenly contested. Particularly in issue was the level of knowledge, which existed in the early 1960’s, of the harmful effects of asbestos inhalation to waterside workers engaged in unloading from the hatches and lockers of ships cargoes of asbestos packed in hessian bags. Also very much in issue was the capacity of ASIA, as the central authority, to take realistic preventative measures in circumstances where the waterside workers were employed by the stevedores and the Authority’s power to control or interfere in stevedoring operations was significantly curtailed by the provisions of the legislation which established it. The evidence led by each of the parties in respect of these issues, both oral and documentary, was plentiful. It was extensively referred to by counsel for each party in addressing the jury. The respective counsel urged the jury to take a view of it which supported the conclusion for which their respective clients were contending. The judge, too, referred to the evidence exhaustively when summing up the competing contentions made on behalf of each party upon the issues in contest. It will be necessary for us to refer in more detail to the issues and the evidence put before the jury in respect of them later in this judgment.
The relevant facts relating to the case have been fully ventilated in the published judgments of this Court[1] and the High Court[2]. It is necessary for present purposes only to recite the following events which have occurred since the trial:
[1][1999] 1 V.R. 782
[2](2000) 74 A.L.J.R. 1
(a) This appeal was heard with a degree of urgency in May 1998. There were four grounds relied upon:
(i) that his Honour was in error in ruling that the appellant had assumed the liability of ASIA to the plaintiff;
(ii) that his Honour was in error in ruling that ASIA owed a duty of care to the plaintiff;
(iii) that the jury’s verdict that there was a breach by ASIA of that duty of care was unreasonable and not supported by the evidence;
(iv) that the damages were so excessive as to be unreasonable.
(b) By agreement, the parties addressed argument on grounds 1 and 2 and were invited to make further submissions in writing on remaining issues.
(c) This Court upheld grounds 1 and 2 and entered judgment accordingly for the appellant. The Court thus found it unnecessary to consider the remaining grounds of appeal.
(d) On 10 November 1999 the High Court allowed an appeal brought by the plaintiff's widow and executrix of his estate ("the widow") against this Court’s decision on grounds 1 and 2, all members of the Court finding that the present appellant inherited such liability as was incurred by ASIA; and a majority of the Court concluding that a duty of care at common law was owed by ASIA to the plaintiff. It ordered that the appeal brought by the widow be allowed, set aside this Court’s orders and remitted the matter to this Court for determination of the remaining issues in the appeal.
(e) In December 1999, the Registrar wrote to the solicitors for the parties, notifying them that it was the Court’s recollection that the appellant had informed the Court that the ground relating to the jury’s finding of breach of duty was no longer in issue, requesting further advice on that matter, and asking whether they wished to submit further materials for the use of the Court. The appellant, in response, said that the issue of breach of duty had not been conceded and noted that the widow’s senior counsel had so informed the High Court. The appellant’s solicitors also notified the Registrar that the appellant would be "arranging for an Amended notice of appeal to be filed".
(f) Notwithstanding this notification in December 1999, the appellant did not in fact give notice of its intention to seek leave to amend its grounds of appeal until 20 June 2000. It then sought to recast its grounds to include grounds alleging that the trial judge erred by giving erroneous directions to the jury on the issue of breach of duty, something which had never been contended before. In particular it sought to amend the grounds of appeal to allege that:
(i) the judge’s directions to the jury in respect of the functions of ASIA under s.17 of the Act constituted a misdirection in the absence of a direction that as a matter of law, ASIA could not be liable in respect of the exercise or non-exercise of the power to make orders pursuant to s.18 of the Act;
(ii) the judge’s direction that it was a matter for the jury to assess against "the whole of the circumstances of the role which ASIA in fact took with waterside workers … whether the duty imposed upon ASIA is diminished in any way by virtue of those terms of the Act" constituted a misdirection;
(iii) the judge omitted to direct the jury that, as a matter of law, ASIA could not be liable in respect of the exercise or non-exercise of the power to make orders pursuant to s.18 of the Act;
(iv) the judge erred in his charge to the jury on the question of causation and in particular failed to direct the jury that there had to be an unbroken causal relationship between any breach on the part of ASIA and the injury loss and damage suffered by the plaintiff;
(v) alternatively to (iv), the judge erred in his charge on the question of causation and in particular failed to direct the jury to consider whether, even if steps had been taken by ASIA, the plaintiff would still have suffered injury loss and damage in any event.
Rule 64.06 of the Rules of Court requires the appellant to obtain the leave of the Court before the notice of appeal can be amended. Senior counsel for the appellant contended that, in the interests of justice, the Court should grant such leave. He conceded that no exception had been taken in respect of any of the matters which are the subject of the amended grounds, but contended that this is an unusual case, involving complex legal principles which were not understood at the time of trial and which have only been settled by the judgments in the High Court. Now that the High Court has defined the limited nature of the duty of care owed by ASIA to the deceased, the appellant submitted that justice required that it should be able to revisit the directions given by the trial judge in the light of what is now known to be the law. Counsel argued that the failure to take exception to the charge should not be a bar to pursuing the amended grounds, first because these are purely questions of law, the determination of which cannot create a relevant injustice to the widow; and secondly because, having regard to the unusual procedure followed at the trial, it was not reasonably open to the appellant’s trial counsel to take exception to the relevant parts of the charge.
The widow’s counsel objected to leave being granted to the appellant to amend the notice of appeal in the manner foreshadowed. Contrary to the contention of appellant’s counsel, he submitted that, if such amendments were permitted and succeeded, great injustice would flow to the widow because the purpose of the amendments was to secure a new trial which could not take place until some three years after the former trial and after the death of the plaintiff; and at which it would be impracticable to marshal the body of evidence presented at the former trial. He contended that the appellant’s trial counsel had fully acquiesced in the procedure which had been adopted at trial and that, to allow the appellant now to amend and argue the foreshadowed grounds would be to permit the appellant to depart from the manner in which it had conducted its case below, and had been content to do so for its own purposes. Furthermore, he submitted that it was not correct to say that such procedure had precluded relevant exceptions from being taken. Exceptions were taken but not in respect of the matters which the appellant now wished to rely upon. Indeed, it was said, trial counsel for the appellant had submitted to the judge on the day following the verdict that on no basis could a duty of care arise requiring the appellant to exercise its powers to make orders under s.18 of the relevant Act.
Whilst we granted leave to the appellant, for reasons to which we will hereafter refer, to amend the notice of appeal by adding a claim for relief in the nature of a new trial, we rejected the appellant’s application for leave to amend by adding the grounds to which we have earlier referred. We did so principally for the reasons advanced by counsel for the widow. This Court will only in exceptional circumstances exercise its discretion to grant leave to a party to argue a point which could have been raised and dealt with in the court below, but was not because, as happened in this case, counsel for the party was content to adopt the procedure which was followed at the trial and, no doubt because it suited his client’s interests, to accept the charge, in the form in which it was given, on the points now sought to be challenged.[3] We cannot accept the submission of counsel for the appellant that it was not readily open to trial counsel to take exception to the charge on the points now sought to be argued on the basis that those points did not and could not have been identified until the High Court articulated the limited nature of the duty owed by the Authority. This was part of a wider submission – to which we will return hereafter – that this trial was fundamentally flawed because it proceeded upon a misconception as to the nature and scope of the duty and what was required to be considered in determining whether there was a breach of it. For present purposes, it is sufficient to say that, although the appellant was contending at trial that no relevant duty of care was owed by ASIA to the plaintiff, it was part of that contention that no duty could exist in ASIA requiring it to exercise its "order making" powers under s.18. It thus seems to us that, if counsel had perceived a deficiency in the trial judge’s directions to the jury in this respect, there was no reason why he could not have taken exception to that aspect of the charge. Exception could plainly have been taken to his Honour’s charge on causation. Indeed, during the course of the charge, the plaintiff’s counsel took exception to the directions given on causation and submitted that his Honour should have directed the jury that on the evidence there could be no issue about causation. In response, appellant’s counsel took no exception to the directions given but contended that the issue should not be taken from the jury. Not only was no exception taken but, as we have noted, no ground of appeal was taken contending that the charge was deficient in these or any other respects until the application to amend the notice of appeal, long out of time. Speaking generally, where a criticism of the judge’s directions to the jury is capable of being taken and the fault can be cured at the trial, that criticism must be taken at the time, and the judge given an opportunity of correcting his directions. If that course is not taken, a new trial on the basis of that criticism will, in general, not be ordered.[4]
[3] Geelong Building Society v. Excel [1996] 1 V.R. 594 at 605-7 per Tadgell, J.
[4]cf. General Motors Holden Pty. Ltd. v. Moularas (1964) 111 C.L.R. 234 at 242-3 per Barwick, C.J.
The appellant submitted that, because the contemplated amended grounds of appeal raised matters which were solely matters of law, the interests of justice should compel the Court to grant the leave sought. The grounds sought to be added, however, will not, in our view, advance the interests of justice in the sense that, if successful, they will bring finality to the proceedings. Rather, the order of a new trial would, for the reasons advanced by counsel for the widow, cause a substantial injustice to his client.
Furthermore, we are of the opinion that, contrary to the submissions of the appellant’s counsel, no substantial injustice will flow to the appellant if leave is refused to amend the notice of appeal. It seems to us that the duty and its scope which the majority of the High Court has found to exist in ASIA is substantially the same as that which the trial judge gave to the jury. Although it is true that the judge did not tell the jury that the power of ASIA to make orders under s.18 could not come within the scope of that duty, it is our view that such omission, in the context of the manner in which the issues were litigated between the parties, would have made no difference to the jury’s finding that a breach of duty had occurred. The essence of the case which the plaintiff made to the jury was that ASIA knew or should have known that the conditions in which the plaintiff was required to work in unloading cargoes of asbestos posed a foreseeable risk of harm of like kind to that to which he succumbed; a risk which could have been avoided by measures such as the provision of suitable clothing and equipment, by establishing earlier than it did the "protocol" for discharging asbestos which was proclaimed in 1970 or by threatening shipowners, as it often did, that it would withhold dock labour from their ships until such time as "palletized loading" of asbestos was introduced.
It was for these reasons that we rejected the appellant’s application for leave to amend the notice of appeal.
After the resumption of the appeal the parties settled the question of the quantum of the plaintiff's damages, leaving only the questions whether ASIA breached the duty which it owed to the deceased and whether the illness suffered by the deceased was caused by ASIA's breach of duty. Argument in the appeal was heard on 28 and 29 June of this year. Then on 21 July judgment was delivered by the Court of Appeal of New South Wales (Mason, P., Stein and Heydon, JJ.A.) in the closely-related case of SIFC v. Ronald John Gibson & Others[5]. Counsel for both parties were permitted to make further written submissions to the Court in light of the observations in Gibson, the responding submissions of the appellant being delivered on 29 August.
[5][2000] NSWCA 179.
The grounds upon which the appellant attacked the jury's finding that there was negligence on the part of ASIA which was a cause of the deceased's illness were:
"That the jury erred in its consideration of the evidence and the weight of the evidence in determining that a risk of injury of the kind suffered by the [deceased] was foreseeable; that the scope of any duty of care and the nature of any obligation owed by the [ASIA] to the [deceased] included a duty or obligation to act so as to prevent or remove such a risk of injury."
The case mounted by the appellant under those grounds was two-pronged. The first of these was a contention that the trial miscarried because the duty assumed for the purposes of obtaining the jury's verdict was not that held to exist by the High Court.[6] As a consequence, so it was said, the jury failed to consider the matters said by the High Court to be relevant to the question whether a breach of duty had been committed, and the trial miscarried. The second prong consisted of a more conventional attack upon the jury's verdict as one which was precluded by the evidence.
[6]Crimmins (2000) 74 A.L.J.R. 1.
A difficulty facing the first method of attacking the verdict was that whether the jury failed to consider the matters held by the High Court to be relevant to the question of breach of duty depended upon the terms of the charge to the jury, and, as we have said, none of the grounds of appeal alleged any errors in the charge. In any event in our opinion the trial judge described the duty which at that stage was assumed to lie upon ASIA in terms that accorded with the duty described by the High Court.
The trial judge said that the jury must first decide whether "the exposure of the plaintiff to asbestos, to the extent to which he alleges he was exposed, carried a risk of him contracting a disease of the kind which he contracted." If the jury found that injury of that kind was foreseeable, they were told:
"To establish that the defendant was negligent, the plaintiff must prove that the defendant did something, or failed to do something, which a reasonably prudent Authority would have done, or would not have done, so as to protect the plaintiff from such foreseeable injury."
The jury were told that the "scope of the duty of care depends on the whole of the circumstances of a given case."
In the High Court those justices who held a duty of care existed described it in terms similar to those employed by the trial judge. Gaudron, J. spoke of
"a duty to take those steps, short of making binding orders, which a reasonable authority with its powers and resources would have taken in the circumstances, which circumstances included the fact that no relevant orders were made."[7]
[7]At [35].
McHugh, J., with whom Gleeson, C.J. agreed, said that the duty was
"a continuing duty of care ... in the exercise of its statutory functions, duties and powers to take reasonable care to avoid foreseeable risks of injury to the health of the plaintiff."[8]
Kirby, J. said:
"[T]he Authority owed a duty of care to the deceased to take reasonable steps to ensure that, when he was allocated to perform work for individual stevedores, the working conditions would be reasonably safe. When necessary (as where the stevedore failed or neglected to do so), the Authority owed a duty of care to provide waterside workers such as the deceased with articles and equipment designed for their protection and safety in carrying out their work and to ensure that such articles and equipment were used."[9]
Callinan, J. defined the duty imposed upon ASIA as:
"a duty to take such reasonable care for the safety of Mr Crimmins in the workplace as the respondent was reasonably capable of taking as a matter of practicality in the performance of its functions, and which the actual employer could not be expected to, or did not itself have the capacity to take, or was flagrantly failing to take, in circumstances in which measures available to the respondent, if taken, would have been likely to be effective in preventing or alleviating the harm done to Mr Crimmins."[10]
[8]At [112].
[9]At [236].
[10]At [360].
We were referred to a passage in the judgment of Gleeson, C.J. in which his Honour said that the present was a case in which, in the evaluation of ASIA's conduct for the purpose of determining tortious liability -
"... recognition of the existence of a duty is consistent with the need, when dealing with the question of breach, to take account of complex considerations, perhaps including matters of policy, resources and industrial relations."[11]
Counsel for the appellant also referred to passages in the judgment of Gaudron, J. where her Honour spoke of the need to take into account the "powers and resources" of ASIA.[12] It was submitted that, as the jury did not consider all the matters said by Gleeson, C.J. and Gaudron, J. to be relevant to the question of breach of duty, the trial miscarried.
[11]At [5].
[12]At [34], [35] and [46].
The statements relied upon by the appellant mention matters which bore upon the ability of ASIA to take steps to safeguard the health of waterside workers and whether it was reasonable to take those steps. The jury were correctly instructed as to the issue upon which breach of duty depended, and were told to consider all the circumstances of the case in determining that issue. The trial judge went further. He reminded the jury that counsel for the plaintiff had submitted that ASIA "had the resources and capacity to have fully investigated the foreseeable hazard of blue asbestos" and added:
"You will have regard to the size of the organisation, the fact that it had inspectors who controlled the wharf, the fact that in September 1962 it was resolved by the national committee, FACWAP, that the Authority would be the channel of safety information to the various agencies and bodies interested in waterside activities."
In our opinion the trial did not miscarry; the jury were directed to and therefore presumably did consider those matters which were relevant to the issue whether ASIA took or failed to take those steps which a reasonable authority in its position would have taken to safeguard the deceased from the risk of injury he sustained. The judge's charge took nearly two days to deliver and his Honour gave counsel the opportunity to take exceptions at each major break (for lunch or at the end of the first day). As we have already noted, no relevant exceptions were taken by the appellant's counsel in the course of or after the judge's charge. In our view the judge's charge was, with respect, very thorough and perspicuously fair.
An examination of the transcript of the trial shows that the more conventional attack upon the jury's verdict as one which was against the evidence and the weight of the evidence was based principally upon three matters. First the appellant was seeking to make a case that in the early 1960s ASIA could not be held negligent in not foreseeing that waterside workers handling asbestos cargoes without protective measures being taken would be at risk of contracting mesothelioma or some other like disease. Secondly on the question of causation, the appellant submitted that nothing ASIA could have done was likely to have eliminated the risk of mesothelioma. Thirdly the appellant placed great reliance upon its involvement with, and the existence and activities of, the Federal Advisory Committee on Waterfront Accident Prevention ("FACWAP"). The appellant did not, on our reading of the material, attempt to dispute the fact that the asbestos being handled at the wharf was the cause, or at least a cause, of the injuries (mesothelioma) suffered by the plaintiff. In this regard the evidence of Professor K.B. Shilkin, a consultant pathologist, and Ms Ann Shanahan, a thoracic surgeon, provided a firm basis for the conclusion that the plaintiff's mesothelioma was the consequence of significant industrial exposure to asbestos.
The first meeting of FACWAP was held on 16 November 1960 and was attended by representatives of the employers, the Waterside Workers' Federation and an accident prevention organisation. The chairman said at the meeting:
"The object of forming this Committee was to give three major bodies concerned with safety, namely the employer, the employee and the Accident Prevention Organisation, the opportunity to talk over the problem in a spirit of co-operation. ... It will not be our job to alter regulations or conditions that have existed over the years but to advise the Authorities concerned in matters that we consider could help in our ultimate aim ..."
From 15 March 1961 a representative of ASIA began to attend meetings of FACWAP. ASIA assumed the role of a conduit to exchange information between FACWAP and State health authorities. At the request of FACWAP ASIA arranged for officers of the various State health departments to attend and advise on the handling of particular cargoes which were considered unsafe. Reports from all the State health department inspections were forwarded to FACWAP by ASIA and sent to the National Health and Medical Research Council ("NHMRC"). Advisory panels were established in each port to serve the same function as FACWAP at a local level and to report to FACWAP on State safety matters. FACWAP operated in that fashion during the whole of the time between 1961 and 1965 when the respondent was employed as a waterside worker.
The minutes of meetings of FACWAP covering the period from 16 November 1960 to 16 April 1971 relied upon by the appellant disclose little interest in taking or advocating prompt action to safeguard waterside workers from the dangers of handling asbestos. A protracted series of discussions within FACWAP and between FACWAP and other bodies eventually led to the adoption of a procedure for handling asbestos cargoes years after the deceased had left the waterfront.
It was not until 20 February 1963 that the topic of the health risk posed by asbestos was raised, and then only tentatively. The Waterside Workers' Federation representative on FACWAP "enquired from the Committee if thought had been given to a scientific survey of waterside workers engaged in handling certain substances which might result in chronic respiratory ailments." The union representative referred to, inter alia, asbestos. The minutes continued:
"After discussion the chairman indicated that such measures outlined by Mr Roach would be of a long-term nature, and it will be necessary for the Committee to give further consideration to the matter."
On 17 April 1963 the representative of the Waterside Workers' Federation said to FACWAP that "Having studied reports concerning asbestos he considered it necessary that some survey of workers who have handled asbestos over long periods should be conducted to ascertain if the disease asbestosis is evident." It was suggested that ASIA would probably be agreeable to conducting such a survey. At a meeting held on 4 November 1964 the representative of the Waterside Workers' Federation
"... stated that the Branch had received literature from their Federal office referring to pulmonary effects of asbestos dust in industry and that his members would like to have the possibility of asbestos dust having any cumulative effect investigated, and, if necessary, further precautionary and/or protective measures introduced."
It was decided to refer the matter to a Dr Jarvis. On 1 December 1965, after the respondent had ceased to be employed as a waterside worker, the representative of the Waterside Workers' Federation requested FACWAP
"to consider the formation of a conference at National level, to meet and discuss with Scientists the problems associated with fume and dust hazards experienced within the Waterfront Industry, together with recommended procedures for their abatement."
After discussion it was agreed that a preliminary feasibility study should be conducted by a doctor and a representative of the Accident Prevention Organisation, who would be asked to examine terms of inquiry and report back to FACWAP at a later date. At a meeting of FACWAP held on 8 March 1966 the idea of a national conference on the control and abatement of dusts and fumes sank without trace. The minutes recorded that
"After discussion it became quite clear that no all-embracing policy nor procedure could possibly cover all situations. For example, the control of pitch dust, bulk grain dust and the fumes of internal combustion machines below each presented entirely different problems calling for entirely different solutions."
On 1 June 1966 the representative of the Waterside Workers' Federation suggested that the Occupational Health Committee examine bulk cargoes and advise on ventilation or other forms of dust suppression, and it was agreed that a list of bulk cargoes with priority order be compiled for submission to the Occupational Health Committee. At the next meeting held on 24 August 1966 FACWAP was presented with a preliminary list of bulk cargoes compiled by the secretary together with information on handling methods. FACWAP determined that a short list of cargoes should be submitted to the Occupational Health Committee and, in order to determine priority, emphasis should be placed on toxicity or nuisance value, number of men exposed, period of exposure and tonnage handled. The secretary was asked to compile such a list. On 26 October 1966 the secretary reported that a sub-committee had selected a short list of cargoes, including asbestos. On 8 February 1967 the secretary informed the members of FACWAP that the Occupational Health Committee had discussed the matter and it was understand that the secretary of the Committee would be corresponding with the Federal Advisory Committee. On 18 March 1969 it was reported to FACWAP that asbestos was to be given top priority in the list of gases, fumes and dusts which the Occupational Health Committee had undertaken to investigate on behalf of FACWAP. The Occupational Health Committee sought information from FACWAP regarding the quantities and methods of handling asbestos. It particularly sought information regarding the type of bags in which it was packed and information as to the degree of exposure of individual waterside workers.
On 23 July 1969 the secretary of FACWAP reported that officers of the Commonwealth Department of Health had commenced investigations into asbestos dust problems. A report from the Occupational Health Section of the Commonwealth Department of Health on asbestos was tabled at a meeting of FACWAP held on 14 October 1969. It was agreed that a sub-committee be formed to draw up a code of practice before handling asbestos. On 21 January 1970 the secretary of FACWAP sent a memorandum to the managers of stevedoring companies informing them that the Occupation Health section of the Commonwealth Department of Health had prepared a report which concluded that the risk to waterside workers from asbestos "is considered to be very slight". On 2 December 1971 FACWAP agreed that the United Kingdom Code of Practice for Handling Consignments of Asbestos Fibre in British Ports be adopted in Australian ports pending the issue of a code for Australia by the NHMRC. An Australian code was formulated in 1972.
It was submitted on behalf of the appellant that the jury failed to accord proper weight to the existence and functions of FACWAP; that the duty of care of ASIA in respect of the safety of waterside workers was satisfied by its participation in the activities of FACWAP; and that there was no obligation on ASIA, so it was said, to do more.
We have no hesitation in rejecting these contentions. There was a large body of evidence which was capable of establishing that the plaintiff was required to work amid thick asbestos dust and that it was known to the medical profession and those concerned with industrial safety issues that the perils faced by persons in the plaintiff's position included the risk of contracting diseases from relatively slight exposure to asbestos dust and fibre. The minutes of FACWAP disclose a mild interest in the topic of the dangers of asbestos, a reluctance to investigate it promptly or with any diligence and no apparent concern to take any action. In our opinion ASIA was not entitled to await consensus and action to emerge from a body comprising representatives of interest groups with inconsistent objectives and different interests in the field of work safety. In order to fulfil its duty to the deceased ASIA was obliged itself to investigate and act upon conditions affecting the health and safety of waterside workers.
The activities of FACWAP and the involvement of ASIA with it were the subject of detailed examination by Mason, P. in Gibson. It was put to us by the appellant's counsel, in written submissions, that Gibson was decided on different issues and on the basis of different evidence, there being said to be many points of distinction both factually and procedurally. We would merely observe that the evidence in relation to ASIA's involvement with FACWAP appears to have been largely documentary, and most of the documents quoted by Mason, P. were in evidence before this Court. The documents in evidence before us lead us to conclusions, it will be seen, which are very close to those to which the Court of Appeal of New South Wales came.[13]
[13]Gibson [2000] NSWCA 179, e.g. at [74], [77] and [78].
It is convenient to deal with the two remaining issues together. A substantial body of evidence was tendered during the trial to justify the jury's conclusions both that ASIA was at fault in not foreseeing that waterside workers handling asbestos cargoes would be seriously at risk, and, on the question of breach, that there were steps ASIA could have taken for the protection of waterside workers against the risk of mesothelioma.
The deceased gave the following evidence as to unloading bags of asbestos:
"When you stood on bags, did you notice anything about the contents of the bags?---Not at the start you wouldn't have but once you worked an hour into it the dust would be starting to form, bags might get torn and I mean if you done two or three days in it there would be inches of it on the floor.
Inches of what on the floor?---Asbestos, just on the bags, as you are going down, you know, the two of you pick a bag up and you throw it off and then keep stacking the bags because the loose stuff just used to float around, it was just there.
...
Were you walking through it?---Yes, whatever you were doing, you were working on it, and the further you went down, as I say, the asbestos would just come out of the bag and float and it is a very fine type of fibre and if the bag wasn't sort of woven enough to keep it in it would just leak out, not leak but float out.
...
What about in the lockers, what was it like?---It was there all the time. You would stand there and spit it out or, you know, you get a noseful of it and be forever blowing your nose, cleaning it out."
A fellow worker of the deceased described the conditions in which the asbestos was unloaded from a locker on a ship in the following terms:
"It was unbelievable. You went into this area, I suppose it would be eight to ten foot wide by about eight foot high and it would be approximately 30 foot long. It would be right choc-a-block full of bags of asbestos. Those bags of asbestos, this was the second time they had been handled, and when we tried to get them out, by just handling them all the asbestos came out of the bags. Inside there, after working at it all day, you'd come out and excuse the expression, you came out like a white golliwog, covered."
An industrial hygiene scientific officer in the Victorian Health Department, (Mr G. Stewart) when asked his opinion as at 1960 as to whether asbestos fibre was toxic, said:
"All the advice we had from our medical department and any documentation I read on asbestos said that it was capable of damaging in this case the human organism and reducing its capacity to function normally and it was, therefore, toxic ..."
Dr. McNulty, who between 1957 and 1962 held the position of Mines Medical Officer in the Department of Public Health in Western Australia, said that the description of the conditions in which asbestos was unloaded from ships given by the deceased and his fellow workers was distressingly similar to the situation which he had encountered at the Wittenoom mill and that in 1961 or 1963 he would have regarded those conditions as a hazard to health.
The dangers posed by asbestos to the health of those who worked with it were proved by publications tendered at the trial to have been well known when the appellant commenced work on the wharves. For example, in an issue of "Manufacturing and Management", a Melbourne journal published on 10 July 1956 reporting the results of a survey conducted by the Victorian Health Department, it was stated:
"Asbestosis is a disease caused by the inhalation of asbestos dust (magnesium silicate). It is believed that the condition is set up by the mechanical intrusion of asbestos fibres into the substance of the lungs.
People prone to the disease are those handling asbestos in its raw state. ...
Once established, asbestosis constitutes a grave threat to life and health."
In 1956 working with asbestos was proclaimed under the Health Acts of Victoria to be a trade which, unless preventive measures were adopted, might become dangerous to the health of persons employed in it. As early as 1945 regulations made under the Victorian Health Acts forbade the employer of any person in any premises allowing a concentration of asbestos greater than five million particles per cubic foot of air to be present in the premises.
The evidence of several witnesses at the trial supported a conclusion that asbestos fibre was a serious risk to the health of workers. Dr. D.J. Kilpatrick, an occupational hygienist, said that the plaintiff's exposure to asbestos in the holds of ships and in sheds and refrigeration lockers had been intense. His evidence was that the code of practice for handling consignments of asbestos fibre in Australian ports recommended by the NHMRC in 1971 largely constituted practices recommended in the 1950s. Dr McNulty, to whose evidence we have already referred, said that by 1960 one did not need to be a medical doctor to appreciate that dust was harmful and that protection was required. Dr McNulty also said that the 1971 NHMRC code of practice had nothing in it that would not have been good practice in 1960. Mr Stewart, to whom we have also already referred, described the conditions under which the plaintiff worked as "primitive and unhealthy" and said that the NHMRC code of practice recommendations to minimize exposure to toxic dust would have been sound not only in 1960, but at any time. Dr A.J. Christophers, an industrial hygiene officer who retired in 1980 as chief of the Industrial Hygiene Division of the Department of Health of Victoria, and who was called as a witness by the appellant, said that he remembered a lecture being given to factory inspectors in 1947 or 1948 concerning asbestos. By the early 1950s he was aware of the link of lung cancer with asbestosis. He said that if, in the period 1960 to 1965, he had seen the conditions described by the plaintiff and his workmates in evidence in ships at the Port of Melbourne, he would most certainly have done something about it. He said that that sort of exposure might have been significant as far as health is concerned, and one would be concerned as to "whether they would get any one of the asbestos related diseases from that exposure".
Accordingly, throughout the time the deceased was employed as a waterside worker it was well known that exposure to asbestos dust and fibres could cause asbestosis. It was not necessary to show that the precise injury in fact sustained was foreseeable. It was only necessary to show harm of a like kind was foreseeable.[14] Mesothelioma was an injury of a like kind. On this evidence the jury were entitled to find that by 1960 it was foreseeable to ASIA that there was a risk to those exposed to asbestos dust and that that risk was not "far fetched or fanciful".[15]
[14]Mt. Isa Mines Ltd. v. Pusey (1975) 125 C.L.R. 383, at 390, 392 per Barwick, C.J., 401-402 per Windeyer, J., 411-413 per Walsh, J.
[15]Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40, at 48 per Mason, J.
ASIA appointed inspectors to investigate and report on conditions existing on wharves and ships. In our view the evidence established that at the least ASIA ought to have known of the extent to which waterside workers were exposed to asbestos dust and fibres. There was no direct evidence of knowledge of any employees of ASIA that waterside workers were exposed to concentrations of asbestos dust that could cause mesothelioma. Counsel for the appellant submitted that constructive knowledge was not sufficient, citing the statement of McHugh, J. in Crimmins v. Stevedoring Industry Finance Committee that:
"Speaking generally, I think it is unlikely that a plaintiff could succeed because of the authority's constructive knowledge of an area of risk, unless it can be said that the defendant authority had an obligation to seek out the requisite knowledge in all the circumstances, including cases where the defendant authority already possesses certain actual knowledge, but fails to look further. It would be a far-reaching step to impose affirmative obligations on a statutory authority merely because it could have or even ought to have known that the plaintiff was, or was a member of a class which was, likely to suffer harm of the relevant kind."[16]
[16]At [102].
The present was, we think, a case in which ASIA was in breach of the duty which it owed to the deceased in that even if it did not know of the risks to his health posed by his working conditions, it ought to have known. There was evidence led at the trial of the pervasive clouds of asbestos dust and fibres in which the appellant worked and the knowledge of the medical profession and those concerned with industrial health and safety of the deadly risk of relatively slight exposure to asbestos dust. These matters were readily discoverable, and in our opinion should have been discovered by an authority which was charged with protecting the safety of waterside workers. ASIA failed to correlate the information generally available as to the dangers of asbestos with the reality of the conditions in which the deceased worked.
In our view the risk of the appellant contracting mesothelioma as a consequence of the conditions in which he worked on the wharves was readily foreseeable by ASIA. ASIA did nothing to protect the appellant, but it had the means to do so and in our view the jury was entitled to conclude on all the evidence that its neglect was a cause of the injury sustained by the deceased. ASIA possessed the ability to protect waterside workers from the hazards of handling dangerous cargo such as asbestos. It could encourage and warn employers, ship owners and workers about proper safety measures and in the last resort could exercise its power to withhold labour from ships and employers who did not take proper measures to safeguard workers. The respondent's evidence was that there was never any warning given about working with asbestos, nor information about the dangers to his health from working in the conditions prevailing. Nor was he ever offered a mask or anything else in an effort to avoid inhaling asbestos fibre. He said that if he had known it was potentially dangerous, he would not have worked in such conditions. ASIA had power to give directions generally as to the methods by which asbestos was to be handled and the protective equipment that was to be supplied to those engaged in that work. ASIA itself had power to provide articles or equipment necessary for the protection of waterside workers. ASIA had the power, if stevedores failed to take particular measures for the safety of their workers, to prosecute the stevedores for breaches of s.33 of the Act or move for the de-registration of the stevedores pursuant to s.35 of the Act or refrain from allocating workers to ships with dangerous cargoes. ASIA in fact took steps to ensure that respirators were available and used for loading and unloading wheat cargoes. No similar steps were taken as regards asbestos.
In Gibson, Mason, P., on the subject of ASIA's breach of duty observed[17] that ASIA's case on breach was that the information available in the 1960s did not make it unreasonable for ASIA to do as little as it did for persons such as Gibson. His Honour said[18] that there was plenty of information available to ASIA during the relevant period, especially through FACWAP that showed that the risk of injury to health was increased by a greater intensity and/or frequency of exposure; and that the hazards to Gibson's health was preventable by means well within ASIA's statutory powers as expressed in the majority judgments of the High Court in the present case. Accordingly, his Honour said[19] that in the light of ASIA's duty of care and its multi-faceted breach, Gibson's task in persuading the tribunal of fact that his illness was caused or materially contributed to by ASIA's conduct was a fairly easy one. If respirators had been provided and (if necessary) their use had been encouraged by ASIA, then the risk to health would have been materially avoided[20]. Each of these statements is immediately appropriate to the evidence which was before the jury in the present case.
[17]At [91].
[18]At [95].
[19]At [98].
[20]At [101].
In their written submissions provided to the Court on 29 August, after Gibson was decided, the appellant's counsel sought to deal with two issues if either was thought by us to have any influence on the outcome of the appeal. The first of these issues related to a document supposedly not discovered by the appellant upon which the widow's counsel sought to rely but to which we have not found it necessary to refer. The second issue was the judgment in Gibson. It will be seen that there seem to us to be many similarities between the evidence before the Court in Gibson, and the documentary and oral evidence in the present case. But we accept that the cases are different and that there are a number of points of significant factual distinction. While the judgment of Mason, P. is, if we may say so, a most helpful examination of the facts in Gibson, it does not influence the outcome of this appeal. It is therefore unnecessary for us to hear further submissions on either of the matters referred to by counsel for the appellant.
There was, in our view, ample evidence to justify the jury's conclusions that ASIA breached the duty of care it owed to the deceased and that the disease he contracted was caused by ASIA's breach of duty.
The appeal should accordingly be dismissed.
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CERTIFICATE
I certify that this and the 23 preceding pages are a true copy of the reasons for judgment of the Court of Appeal (Winneke, P., Charles and Buchanan, JJ.A.) of the Supreme Court of Victoria delivered on 16 November 2000.
DATED this day of 2000.
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