White v Amaca Pty Limited

[2011] NSWDDT 6

Dust Diseases Tribunal

New South Wales

Medium Neutral Citation:	White v Amaca Pty Limited & Ors [2011] NSWDDT 6
Hearing dates:	29 April 2011
Decision date:	02 May 2011
Before:	Kearns J
Decision:
Catchwords:	s 25B (Dust Diseases Tribunal Act 1989) notice; Issues of a general nature; foreseeability; causation
Legislation Cited:	Dust Diseases Tribunal Act 1989 Dust Diseases Tribunal Rules 1990
Cases Cited:	Bendix Mintex Pty Limited & Ors v Barnes (1997) 42 NSWLR 307 CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 Seltsam Pty Limited v McNeill [2006] NSWCA 158 John William Booth v Amaca Pty Ltd & Anor (No.1) [2010] NSWDDT 4 E M Baldwin & Sons Pty Ltd v Plane (1998) 17 NSWCCR 434 O’Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1938) 59 CLR 744 John William Booth v Amaca Pty Limited and Amaba Pty Limited [2010] NSWDDT 8 (re Jones-Mashman) Amaca Pty Ltd v CSR Ltd (No. 2) [2009] NSWDDT 24 (re Jones-Mashman) Amaca Pty Ltd v CSR Ltd [2007] NSWDDT 17 Eaton v Carrier Air Conditioning Pty Ltd (2004) 1 DDCR 716 Bonnington Castings v Wardlaw [1956] AC 613
Category:	Procedural and other rulings
Parties:	Suzanne White (Plaintiff) Amaca Pty Limited (First Defendant) University of Newcastle (Second Defendant/Cross Claimant) State of New South Wales (Third Defendant/Cross Defendant)
Representation:	Mr D Letcher QC, instructed by Maurice Blackburn, appeared for the plaintiff Mr D J Russell SC, instructed by DLA Phillips Fox, appeared for the first defendant Mr T G R Parker SC with Mr G Parker, instructed by Moray & Agnew, appeared for the second defendant/cross claimant Mr J F Burn appeared for the third defendant/cross defendant
File Number(s):	DDT276/2010

ruling

1. Mr Letcher QC, for the plaintiff, seeks to rely on a notice under s 25B of the Dust Diseases Tribunal Act 1989 filed on 21 April 2011. Objection is taken to it at a general level and also its specific levels.

1. At a general level, it is submitted that it was not served in a reasonable time. I shall return to that.

1. At a specific level, each item in the notice is said to fall foul of s 25B.

1. Section 25B(1) provides:

Issues of a general nature determined in proceedings before the Tribunal (including proceedings on an appeal from the Tribunal) may not be relitigated or reargued in other proceedings before the Tribunal without the leave of the Tribunal, whether or not the proceedings are between the same parties.

1. There is a relevant rule. That is r 9 of the DDT Rules ( Dust Diseases Tribunal Rules 1990) . Rule 9(1) provides:

A party who intends to rely in any proceedings on the determination in other proceedings of an issue of a general nature, as referred to in section 25B (1) of the Act, must within a reasonable time file and serve on all other parties notice of that intention, including full particulars of the precise issue alleged to have been determined and as to when, where and by whom the issue is alleged to have been determined.

1. I deal with the items in the notice. They fall into two categories, foreseeability and causation.

Foreseeability

1. Item 1:

Although, as at 1962 and through to the 1970s there was a degree of uncertainty in the literature about a number of aspects of the hazards of asbestos, its overall effect was that asbestos was dangerous and that chrysotile could not be excluded as a product which causes asbestos related diseases. It was believed that end users, such as persons in the brake servicing industry could be at risk if exposed to dust containing asbestos fibre, although there were also studies and investigations, such as those conducted by Dr Rathus and later by Ms Snowden, which indicated that brake service workers were not at risk because the level of dust emitted was very low. However, given that during this period, when there was a substantial body of evidence which raised explicit concerns about even low levels of asbestos exposure, it was foreseeable that there was a risk of harm to a person so exposed.

Determined Issue: By the 1970s risk of asbestos related disease by exposure to asbestos dust in light an [sic] intermittent exposures was reasonably foreseeable.

1. I reject this item.

1. This item does not set out the issue alleged to have been determined in Bendix (Bendix Mintex Pty Limited & Ors v Barnes (1997) 42 NSWLR 307) . It sets out a statement of a result. An issue is a point in question to be determined. This item is more in the nature of a statement. I can perhaps paraphrase the statement of the issue alleged to have been determined as:

By the 1970s, was the risk of asbestos related disease by exposure to asbestos dust in light and intermittent exposure reasonably foreseeable?

Stated in this way, it is apparent that this item cannot stand.

1. The essence of this item is that as at 1962 and through to the 1970s it was foreseeable that there was a risk of harm to persons exposed to low levels of asbestos. If this is relied on as a statement of general application, it cannot stand with CSR v Amaca ( CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338) and possibly even with McNeill (Seltsam Pty Limited v McNeill [2006] NSWCA 158) . If it is not relied on as a statement of general application, then the issue of a general nature has not been appropriately defined. It is not for the Tribunal to define the issue of a general nature, or the determination on that issue. The party relying on the section must do so.

1. In Boot h (John William Booth v Amaca Pty Ltd & Anor (No.1 ) [2010] NSWDDT 4) , which I shall call Booth (No 1) , Curtis J likened the section to estoppel. The pleading of an estoppel point is not a difficult matter. Provision of particulars in the nature of an estoppel pleading would satisfy r 9. That has not been done here.

1. Item 5:

Reasonable foreseeability of risk of mesothelioma from asbestos exposure does not depend on actual knowledge that exposure to a small amount of asbestos constitutes a risk of injury.

Determined Issue : Foreseeability does not require actual knowledge of risk from low doses of asbestos.

Item 6:

Reasonable foreseeability of risk of injury from a small amount of asbestos exposure is proved if the defendant had actual or constructive knowledge that asbestos exposure constituted a risk of injury.

Determined Issue : Foreseeability does not require actual knowledge of risk from low doses of asbestos as per O'Meally J at first instance.

1. I reject these items for reasons already given.

1. Also the statements here are statements of law. In my view, s 25B does not apply to determinations of law. It cannot, in my view, do so. A s 25B statement, which sets out a proposition of law which is correct, would be unnecessary. A s 25B notice which includes a statement of law which is incorrect, if it is a good notice and allowed in, would prevent the parties receiving the notice from agitating the issue and prevent the Tribunal from considering the issue and the Tribunal, and possibly even the Court of Appeal, would be bound by s 25B to apply incorrect law. That cannot be the case. Section 25B in my view must be limited to determinations of fact.

1. Further, on these items, the particulars relied on are not correct in that the relevant exposure was not less than the Dreessen level as alleged.

1. Item 9:

By 1953 the risk of causing asbestos-related disease by repeated periodic exposures to asbestos was reasonably foreseeable.

Determined Issue : Foreseeability of risk from repeated exposures by 1953.

1. I reject this item.

1. It fails to satisfy r 9.

1. Further, the determination relied on here is a decision of the Court of Appeal when the appeal to that Court was limited to questions of law. It therefore cannot have made a finding of fact. It could uphold a finding of fact on the basis that evidence supported it, or overturn a finding of fact on the basis that there was no evidence for it, but it cannot have determined an issue of fact on an issue of a general nature.

1. Item 10:

By 1963 if a defendant was aware of the existence of asbestos dust at premises where the plaintiff was employed it was reasonably foreseeable that a risk of injury arose from repeated possible exposures to that asbestos.

1. I reject this item.

1. It fails to satisfy r 9.

1. Further, the statement in the item cannot be extracted from the passage in Plane ( E M Baldwin & Sons Pty Ltd v Plane (1998) 17 NSWCCR 434) relied on. The most serious mischief is that the s 25B notice, has elevated foreseeability of an employer to foreseeability of every possible defendant. The section does not allow this. The situation may again be likened to estoppel. What has happened here is what the High Court in O'Donel ( O'Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1938) 59 CLR 744) said is not permitted. Assuming the statement in Plane of Fitzgerald A-JA has the effect of an estoppel, it is not permissible to use that to establish another estoppel which flows from the first one when the first one is combined with other evidence, no matter how strong that evidence might be.

1. In any event, what the section demands is an ascertainment of what was determined and what is in this item was certainly not determined.

1. Item 11:

Foreseeability can turn on knowledge of the dangers of any exposure to asbestos ... and is not confined to knowledge of the dangers of exposure to high levels of asbestos or levels of asbestos above any particular standard.

Determined Issue : foreseeability of risk from small exposures to asbestos.

1. I reject this item.

1. It fails to comply with r 9 and it raises a question of law.

1. That brings me to the causation items.

Causation

1. Item 2:

All exposures to chrysotile asbestos other than trivial or de minimus [sic] exposure occurring in a likely period of between 25 and 56 years materially contributes to the cause of mesothelioma.

Determined Issue : Causation of mesothelioma by intermitted [sic] exposure to chrysotile asbestos 25-56 years before diagnosis.

1. The determined issue might be paraphrased in the form of an issue as,

May mesothelioma be caused by intermittent exposure to chrysotile asbestos twentyfive to fiftysix years before diagnosis?

1. Framed in that way, the statement in the notice sets out the determination on the issue. It is, in my view, a determination on an issue of a general nature.

1. Mr Parker SC, who appeared with Mr Parker for the University, argued that the statement was not made good by an analysis of the case. This case I shall call Booth (No 2) ( John William Booth v Amaca Pty Limited and Amaba Pty Limited [2010] NSWDDT 8) . I do not accept that submission.

1. Mr Booth had intermittent exposure working on brake linings. His case was that all exposure to asbestos within an acceptable latency period materially contributes to the mesothelioma in a particular individual, and that his exposure materially contributed to his disease (Booth (No 2), para 23) .

1. The defendant's case was that there were several competing theories of causation on the evidence being the single fibre theory, the mechanical theory based on the physical properties of asbestos, the chemical theory and the complete carcinogen theory (Booth (No 2) para 48) . The cumulative burden theory was merely a guess and not a legitimate inference (Booth (No 2), para 47) .

1. His Honour either rejected all the alternate theories put forward in the defendant's case or considered them not incompatible with the cumulative burden theory (Booth (No 2), paras 49 to 51) .

1. His Honour then stated and resolved the issue. At para 59, he said,

At issue between the parties in this case is the proposition that all exposure to chrysotile asbestos, other than trivial or de minimis exposure, that occurred in a latency period of between 26 and 56 years, materially contributed to the cause of Mr Booth's mesothelioma. I resolve that issue in favour of the plaintiff.

1. That paragraph in itself is enough to satisfy s 25B.

1. It gets added support from para 62 where his Honour said:

Upon the facts in this case I specifically determine for the purpose of s25B that all exposures to chrysotile asbestos, other than trivial or de minimis exposure, occurring in a latency period of between 25 and 56 years, materially contributes to the cause of mesothelioma.

1. The first clause in that paragraph, "Upon the facts in this case, I specifically determine for the purpose of s 25B that" , was the subject of some submissions and whether it complied with s 25B(1A). It does not matter.

1. The finding itself, without that clause either is a finding that satisfies s 25B or it does not. That clause does not add anything to or take anything away from the finding.

1. There can be no doubt that this was the issue fought in that case. Nor can there be any doubt about the seriousness of the contest on the part of the defendant. In rejecting the s 25B notice in Booth (No 1 ), Curtis J said at para 16:

The defendants are not by force of s 25B precluded from arguing that the exposure of Mr Booth to the asbestos brake linings that they manufactured made no material contribution to his disease.

1. Booth (No 1) and then Booth (No 2 ) were conducted on behalf of the defendant in those cases by one of the most experienced senior counsel practising in this jurisdiction and on behalf of the most experienced defendant in this jurisdiction and Booth (No 2) was contested over a period of ten days. In my view the issue of a general nature was raised and determined in Booth (No 2) by Curtis J. I accept that item 2 in the s 25B notice is a legitimate item.

1. Item 3:

Professor Henderson's "cumulative effect" theory of mesothelioma causation by successive inhalations of different forms of asbestos should be accepted.

Determined Issue : Whether there is a threshold dose of asbestos below which mesothelioma will not occur or whether there is a cumulative effect of successive exposures.

1. The issue here is expressed in appropriate form and the item relied on expresses the result of that issue.

1. Whether the issue under determination is correctly expressed was debated. In my view, the passages in Plane relied on do not reveal that there was a determination of an issue of a general nature.

1. Paragraphs 89 to 95 were an analysis of Professor Henderson's evidence and a determination that the Tribunal was correct to accept his evidence. That in itself does not give rise to a determination of an issue of a general nature. It is necessary to know what was accepted. What was accepted was related to amphibole fibre ( Plane, para 93) , and not different forms of asbestos as the notice asserts.

1. I reject item 3.

1. Item 4:

All asbestos exposure within an acceptable latency period except de minimus [sic] exposures or other extraordinary features makes a material contribution to the cause of mesothelioma.

Determined Issue : Defendant responsible for only some of asbestos where there were repeated instances of exposure is liable.

1. The determined issue might be paraphrased as,

Is a defendant liable to a plaintiff where the plaintiff has had repeated exposures to asbestos but the defendant has been responsible for some only of those exposures?

The statement in the item provides the determination on that issue and it is an issue of a general nature.

1. Again, there was debate as to what was decided by JonesMashman ( (re Jones-Mashman) Amaca Pty Ltd v CSR Ltd (No. 2) [2009] NSWDDT 24) . This was a crossclaim. CSR submitted that any exposure for which it might be liable did not make a material contribution to the plaintiff's mesothelioma. This submission was rejected.

1. In paras 6 and 7, the President said:

6. In the present proceedings, it has been submitted by senior counsel for CSR that I would not be satisfied that any exposure for which it might be liable, made a material contribution to the plaintiff's mesothelioma. I reject that submission. As noted in my reasons of 8 August 2007, it is plain beyond controversy, that all asbestos exposure in an acceptable latency period, makes a material contribution to the disease of mesothelioma.

7. That conclusion has been reached in many cases decided in the Tribunal. If it be necessary to do so, then pursuant to r 9(2) of the rules made under s 33 of the Dust Diseases Tribunal Act 1989 (the Act), I determine as an issue to which s 25B applies, that all asbestos exposure within an acceptable latency period, makes a material contribution to the disease. It is well known and has been determined on many occasions, that the latency period for mesothelioma varies between 10 and 60 years.

1. What he had said on 8 August 2007 was:

It is now plain beyond controversy that all asbestos exposure during an acceptable latency period makes a material contribution to mesothelioma. It is plain beyond controversy that mesothelioma is an indivisible injury. ( (re Jones-Mashman) Amaca Pty Ltd v CSR Ltd [2007] NSWDDT 17 [16] )

1. In Eaton , an earlier case, he said:

McPhersons did not concede, at least did not concede consistently, that all asbestos exposure during the expected latency period for mesothelioma is causative of or makes a material contribution to that disease. Nevertheless, the evidence that all asbestos exposure makes a material contribution to mesothelioma is evidence which I would have thought is now beyond controversy. Not only has such a conclusion been reached in many cases before this, but the uncontradicted evidence in this case supports that view. The failure to maintain that concession was unjustified and unmeritorious. (Eaton v Carrier Air Conditioning Pty Ltd (2004) 1 DDCR 716 [8] )

1. He also said:

It is beyond controversy that all asbestos exposure during the course of the latency period, which generally is accepted to be anything between 10 and 60 years, is causative of mesothelioma and makes a material contribution to it. ( Eaton v Carrier Air Conditioning Pty Ltd (2004) 1 DDCR 716 [11])

1. I do not propose to analyse each of these cases. I have analysed Booth (No 2) in considering item 2 and this item is sufficiently analogous that it does not require further analysis. I consider this item to be an appropriate item under s 25B.

1. In relation to this item, I might add that the President, some of whose pronouncements I have just recited, has been a member of this Tribunal since its establishment in 1989. The cases of mesothelioma he has heard and determined have been innumerable. So have the number of times he has heard evidence from expert witnesses and read expert reports as to the pathogenesis of mesothelioma. His pronouncements that all asbestos is causative has come from a vast experience of reading and listening to evidence over many years. It is not without some justification that he seemed to express some exasperation in Eaton and sought to bed the matter down finally in JonesMashman .

1. It is in my view important that s 25B be applied strictly. This is because it does have the effect of an estoppel. Its effect is to shut parties out from litigating particular issues. In doing so it is not limited to parties who have had the benefit of litigating such issues. Parties are denied the opportunity to litigate particular issues if s 25B is properly invoked, and for that reason it is important that it be applied strictly. Nevertheless it does have a purpose and one of its evident purposes is the avoidance of exhaustive and costly examination of the same question over and over and over again . ( Eaton v Carrier Air Conditioning Pty Ltd (2004) 1 DDCR 716 [25])

1. Item 7:

Proof of the precise mechanism by which asbestos causes disease is not necessary for proof of causation at law.

Determined Issue : Not necessary to detail precise causal mechanism of disease.

Item 8:

Proof of material increase of risk of disease by exposure to asbestos may lead to an inference of causation without direct evidence of how the causal events occurred.

Determined Issue : Not necessary to detail precise causal mechanism of disease.

1. I reject these items.

1. In my view they fail to satisfy r 9. They also assert propositions that in my view are questions of law.

Submissions of Mr Parker SC

1. Mr Parker SC made some submissions that I have not dealt with thus far.

1. One submission was that the effect of my giving force to the s 25B notice would be to reverse the onus of proof and the defendants will have to prove that the plaintiff's exposure was de minimis . I am not sure that that is an effect. That can be debated in substantive submissions and determined later. On the face of it, if there is an onus, it might simply be an evidentiary onus.

1. In any event, if the result is that there is a shifting of onus, then so be it. In my view, that is not a reason for not giving effect to s 25B.

1. Mr Parker SC also argued that to give effect to the notice, would be of no utility because it would not work in a practical way, because there is no indication of what de minimis means. In my view this is not an objection to the validity of a notice. Lord Reid had no hesitation, as a general proposition, in excluding a de minimis contribution from causation in his analysis in Bonnington Castings v Wardlaw [1956] AC 613 . Difficulty of application in applying the principle does not provide a basis for its exclusion.

1. Another submission was that the statement that all exposure is causative is a legal proposition. I do not think this is so. It is a proposition that has emerged from the hearing and analysis time and again of extensive evidence, and it has resulted in a determination being a finding made on competing evidence.

1. It was then argued that the defendants should have leave under the section to reargue or relitigate the matter. Exhibits A and B are relied on.

1. Exhibit A, so far as it was relied on, comprised some evidence of Professor Henderson given in the District Court of South Australia in February of this year. The effect of it is said to be that there is fresh evidence. The fresh evidence is that where in the past Professor Henderson has spoken about all exposure being causative he merely means that all exposure increases the risk of contacting mesothelioma. At p 484 line 16 to 485 line 16, he was asked about every single fibre contributing to mesothelioma. He said that it is the fibres that have translocated to the pleura that have that effect. It is a proportion of the inhaled fibres that have the contributory effect. The more fibres there are, the greater the number of chemical messages and free radicals and mutations and, hence, I would interpret, the greater the contribution. In response to a question as to "looking forward", he said that the greater the number of fibres, the greater will be the risk.

1. At p 485 line 15, the following question and part answer were given:

Question And that is all you are seeking to convey by using phrases such as further quite significant causal effect.

Answer Yes.

1. That question was still in the context of looking forward.

1. Evidence to much the same effect was given at p 510. There Professor Henderson spoke of all exposures being contributory. The following question and answer appear at p 510 line 25:

Question When you say all exposures would contribute in that way, what do you mean is as you explained yesterday that all exposures increase the risk of mesothelioma developing.

Answer Yes.

1. I do not understand this evidence to be inconsistent with all exposures being causative. Earlier at line 13 on p 510, Professor Henderson seems to make the distinction between risk and risk coming home.

1. I do not think pp 4 and 5 of exhibit B advance the defendants' position on this point.

1. I do not think exhibits A and B undermine the cumulative exposure theory or provide a basis for arguing that it is incorrect.

1. That leaves Mr Parker SC's submission that the notice was not served within a reasonable time. It was not, and Mr Parker SC and the other defendants have cause to be critical of this.

1. I sought from the defendants at the beginning of the hearing a statement as to what the issues are. I hope I do none of them a disservice if I summarise.

1. As to Amaca, the issues are whether the plaintiff was exposed to asbestos and if so whether the exposure was de minimis. That raises causation which will be determined by the evidence of exposure and the expert evidence applied to that evidence.

1. As to the University and the College, the issues included whether there was a risk to the plaintiff's health when she was a student in 1981 and 1982 and in 1984 and 1985 and if so whether reasonable steps were taken to address that risk. Causation was stated to be an issue and I take that to go to whether the plaintiff was exposed and the extent of the exposure. There was also an issue as to whether the second defendant was the proper defendant.

1. As to the State, the same issues arise as in the cases against the University and the College. It also claims a statutory shifting of any liability that might otherwise be visited upon it.

1. I need to bear that background and those issues in mind in considering the submissions as to the late service of the notice.

1. A submission that the notice was not given in a reasonable time is supported by the history of the case.

1. The statement of claim was filed on 30 September 2010. The matter went to mediation which did not result in a resolution of the matter. In fact, rather extraordinarily, it did not even resolve what was in issue in the matter. The experienced mediator was unable to provide the certificate required as to what the issues were and had to state that the parties apparently did not know what they were.

1. After the mediation failed to resolve the matter, soon after as I understand it, an application was made before the President on 11 April 2011 to fix the matter for hearing. It was stated to be ready when in fact it was not. It was said to be a case that would last two, possibly two plus days. It has already taken three and has another five set aside. The matter plainly was not ready when the President was told that it was. No s 25B notice had then been served. No s 25(3) notice had then been served. No expert had been qualified as to the effect on the plaintiff of her exposure, even though, I am informed, that it was made crystal clear to the plaintiff in the defendants' replies that the extent of exposure was in issue. The President fixed the matter for hearing to commence on 18 April 2011 before me.

1. Rather extraordinarily, within 24 hours, the parties made an application to me to vacate the hearing date. It had not started before me. It would have been appropriate to go back to the President. The hearing date was confirmed. The matter was still said to be ready and it was thought that it might take longer than the two, two plus days, but, as I recall it, was thought not likely to take more than about three days. Again, the plaintiff still had not qualified any expert evidence and had not served any s 25B or s 25(3) notices. The notices were not served until after the hearing date was confirmed, and they were served on 13 April 2011. That was a Wednesday; the hearing was due to commence the following Monday.

1. At the end of the second day of hearing, after some considerable discussion about the state of the s 25B notice, Mr Letcher QC sought an opportunity to reconsider the plaintiff's position in relation to the s 25B notice. In the end he decided not to proceed with it and a fresh one was served. The plaintiff should not be rewarded for that state of affairs, but if I were to apply a test of reward or no reward, I would be applying the wrong test. The test is what is fair and just as between the parties.

1. Along with the other matters I have indicated, that history I also need to consider in determining whether I allow what has been left of the s 25B notice.

1. Mr Parker SC in reply ultimately pointed to some prejudice that he would suffer and that is that he would be shut out from arguing against the determination that all exposure except de minimis exposure in the latency period is causative of mesothelioma. I do not accept that the defendant is entirely shut out on the causation issue. De minimis exposure is not causative. The parties are free to explore the full extent of the plaintiff's exposure, put the extent of that exposure to experts for opinion and make submissions as to whether the extent of that exposure is causative or not. It is not helpful to ask now, and it may or may not be helpful to ask in evidence what is de minimis , whether it is one per cent, two per cent, five per cent or something else. The proper course seems to be to obtain the detailed evidence as to exposure and the relevant expert evidence that goes with that and use all that evidence as the foundation for the appropriate submissions.

1. In any event, if there is a prejudice, in my view it is not a prejudice that has resulted from late service of the notice. It is a prejudice that would exist if the notice had been served in proper time. Section 25B creates its own prejudice.

1. I allow the s 25B notice to the extent that I have indicated in these reasons and I will have it marked as Exhibit PX29.

Decision last updated: 19 July 2011