White v Pink Batts Insulation Pty Ltd & Anor

[2003] HCATrans 768

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D1 of 2002

B e t w e e n -

RICHARD ANDREW ROLAND WHITE

Applicant

and

PINK BATTS INSULATION PTY LIMITED

First Respondent

COMMERCIAL UNION ASSURANCE

Second Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2003, AT 2.02 PM

Copyright in the High Court of Australia

MR R.D. WILSON:   May it please the Court, I appear for the applicant. (instructed by Maurice Blackburn Cashman)

MR J.C.A. TIPPETT, QC:   If it please your Honour, I appear for the first respondent. (instructed by De Silva Hebron)

MR P.M. BARR:   If it please the Court, I appear for the second respondent. (instructed by Hunt & Hunt)

GLEESON CJ:   Thank you, Mr Barr.  Mr Wilson.

MR WILSON:   Your Honours, on the 18^th of this month we forwarded a supplementary outline of argument to the Court and I would seek leave to rely on that document.

GLEESON CJ:   Is that opposed, Mr Tippett?

MR TIPPETT:   No, your Honour.

GLEESON CJ:   Mr Barr?

MR BARR:   No, your Honour.

GLEESON CJ:   Yes, go ahead. 

MR WILSON:   Thank you, your Honour. Your Honours, the application raises the question of whether further evidence should have been permitted, under section 54 of the Supreme Court Act of the Northern Territory, of the results of an open lung biopsy carried out after the trial, which revealed the cause of the applicant’s impaired respiratory function.  I should dwell shortly on the facts.

The applicant sued his employer for common law damages for a negligent system of work.  He worked as an assistant sandblaster of fuel tanks and barges and pylons in Darwin between 1971 and 1974 and the trial judge found that the system of work was negligent, because employees were not provided with adequate clothing equipment or protective apparel.  She found that the applicant was exposed to silicon in the course of his employment, but, significantly, she found that the applicant had failed to prove he had silica‑induced airways disease, silicosis, any evidence of silica in the lungs or any condition related to his exposure to silica.  In terms of a positive finding, her Honour found that the applicant suffered from moderately severe asthma and she found that the asthma was probably related to cigarette smoking.

GLEESON CJ:   Mr Wilson, what was the evidentiary basis on which the trial judge found that your client was a heavy smoker?

MR WILSON:   Your Honour, the evidentiary basis upon which she found that he was a heavy smoker was this, that she rejected the evidence given to his doctors that he had a trivial smoking history, which, in the papers, is cigarettes of between 10 and 20 per day for 20 years.  She rejected that evidence, in the context not only of that evidence, but a number of other credit issues, and that was the basis ‑ ‑ ‑

GLEESON CJ:   I am sorry, I have not understood your answer.  I understand that she disbelieved your client’s evidence that he was only a light smoker.  What was the evidence on which she based her finding that he was a heavy smoker?  What was the basis of the disbelief?

MR WILSON:   Essentially credit findings, your Honour, and having regard to other matters concerning his evidence of business activities, the fact that he had not been believed as to the extent of his exposure to silica, and other credit matters.  But, significantly, we would say, the trial judge did not take the further step of making any positive finding as to what his level of smoking in fact was.  That is a matter I will come to.

GLEESON CJ:   Was there any evidence before the trial judge about the amount he smoked, except his own evidence, which was that he smoked little?

MR WILSON:   There was some evidence in relation to his level of smoking.  There was some objective evidence which permitted the trial judge to form a conclusion that he had not given up smoking in 1991, but had continued to smoke thereafter.  So there was some objective evidence which permitted the trial judge to make that finding, but she did not ever find what the level of smoking was.

GLEESON CJ:   Well, I made my question clear.

MR WILSON:   Yes.  Your Honour, we see that as being a gap in the evidence in relation to the basis upon which the trial judge could make the finding, other than that it was on ‑ ‑ ‑

GLEESON CJ:   Where do we find the finding?

MR WILSON:   I will just turn up the page for your Honours.  While I am doing that, we say, certainly, that the finding that the applicant’s evidence of his smoking history was not to be believed did not undermine the objective evidence which was disclosed as a result of the biopsy.  Can I just turn up the finding in relation to smoking.  At the bottom of page 39 at 45, her Honour says:

I consider Mr White was not frank in his own history of his smoking habits relayed to Professor Bryant –

who was his doctor.  Then, at page 40 line 25, her Honour observes:

I do not rely on Mr White’s evidence that there was only one relapse after July 1991.

So they are the findings in relation to smoking, but, as I said, there was no positive finding as to what the level of smoking in fact ‑ ‑ ‑

HEYDON J:   At page 39 line 30, it says that:

Mr White informed personnel at the Prince of Wales Hospital Department of Respiratory Medicine on 22 January 1992, that he smoked for 17 pack years.

How does that fit in with his own evidence to the court?

MR WILSON:   Your Honour, 17 pack years, according to my understanding, is a consumption in excess of the history recorded.

GLEESON CJ:   What does it mean?

MR WILSON:   Your Honour, 10 pack years is between 10 and 20 cigarettes a day for 20 years.  17 pack years is in excess of that.

GLEESON CJ:   Can you please tell me the meaning of the expression “17 pack years”?

MR WILSON:   20 cigarettes a day for 17 years.

GLEESON CJ:   Thank you.

HEYDON J:   So 17 would be 1.7 times higher.

MR WILSON:   Yes, your Honour.  Your Honour, the biopsy carried out on 20 September was carried out at six sites by a cardiothoracic surgeon and the results were reported on by Professor Williams, who was a lung transplant specialist, who discussed the results with the surgeon.  The doctor reported – and this is at page 144 of the book – that three pathologies were found to be occurring.  That is commencing at line 15.  First there was:

centriacinar emphysema which seems to be patchy and quite mild.

Second:

focal aggregates of macrophages in alveolar spaces with lymphoid aggregation at the level of the terminal bronchioles.  One of the airways showed near complete occlusion with what looked like an inflammatory process which had quite a lot of brightly birefringent crystalline material, as would be seen with silica.

Three:

There was also extension of inflammatory cells moving into the lung tissue confirming mild silicosis.

The further evidence which was sought to be adduced at the hearing before the Court of Appeal fell into a number of categories summarised in the judgment of Justice Mildren at page 235B[16], where his Honour records:

there is the histopathological evidence of Dr Jessup, supported by the examination of the biopsy specimens by Professor Williams.  These findings are in themselves not contentious.  Secondly, there are the opinions of the appellant’s medical witnesses who comment on the significance of those findings.  These opinions are contentious, as the subsequent reports of the respondent’s medical experts demonstrate.

Professor Williams also reported, as a result of his analysis of the biopsy results, that there was no evidence of airways inflammation in a pattern seen in asthma.  So on the face of the pathology seen as a result of the biopsy, the factual findings of the trial judge could not stand.

There was also before the Court of Appeal a number of reports tendered by the respondents – by the doctors who had given evidence at first instance, Drs Field and McKenzie – which, on the basis of the biopsy reports, offered an opinion dramatically opposite to Professor Williams.  In short, those doctors, on the basis of the biopsy reports, maintain their view that the applicant’s problems are related to asthma and cigarette smoking.  It was in that context, your Honours, that the Court of Appeal found that all of the applicant’s medical evidence was predicated upon a trivial smoking history, whereas the trial judge found that the applicant’s evidence to that effect was unacceptable and false.  Second, in the case of Justice Mildren at page 235B:

that the further evidence does not subvert –

the finding of the trial judge –

that the appellant’s present respiratory systems were not caused by exposure to silica between 1971 – 1974, but were explicable due to cigarette smoking.

Your Honours, it is our submission that the Court of Appeal erred in two respects.  We say that the Court of Appeal erred in finding that all the applicant’s further evidence was predicated on a trivial smoking history.  Secondly, we say the Court of Appeal erred in finding that the further evidence did not subvert the finding of the trial judge that the applicant’s respiratory systems were explicable due to cigarette smoking.  The three reasons we put for that are these.  Two of the three pathologies found to be present on the biopsy could only be attributable to the applicant’s silica exposure, irrespective of the level of his cigarette consumption.  Professor Williams makes the point at appeal book page 147, where he says:

Although it remains possible that this very mild cigarette exposure has led to his lung injury this does not explain the mild changes of silicosis and I believe that it is far more likely than not that his lung disease is due to silica exposure ‑ ‑ ‑

GLEESON CJ:   Just a moment.  That assumes a very mild cigarette exposure?

MR WILSON:   Yes.

GLEESON CJ:   So that is the basis for the proposition that the argument that it was silica exposure that caused this is based upon an assumption that he had not been a heavy smoker?

MR WILSON:   With respect, no, your Honour.

GLEESON CJ:   Well, what does this doctor mean by saying:

Although it remains possible that this very mild cigarette exposure has led to his lung injury this does not explain –

et cetera.  The doctor assumed he had a very mild cigarette exposure, and that is just wrong, is it not?

MR WILSON:   He did, indeed.  Her Honour found that, yes.

GLEESON CJ:   And she had an objective basis for finding it, which was an admission that your client made to personnel at the Prince of Wales Hospital on 22 January 1992.

MR WILSON:   Your Honour, the way it works is this.  The emphysema, which was said to relate to silica, could well, on the assumption that the cigarette consumption was not trivial, have been attributable to cigarettes, but the silica evidence in the lungs and the evidence of the silicosis could not, in our submission, on any basis, be attributable to cigarette smoking.  So, your Honour, the argument that we put is this, that irrespective of the finding of the trial judge that there was a non‑trivial cigarette smoking – and what may follow from that is that the opinion of the doctor that the emphysema is related to silica may be subject to dispute – it does not affect the objective evidence found on the biopsy that there was (1) silica in the lungs and (2) evidence of mild silicosis.

GLEESON CJ:   But if you accept that he was not a light smoker, but was a person who smoked a packet of cigarettes a day for 17 years, what is the line of reasoning that produces the result that the discovery of silica in his lungs subverts the basis of the trial judge’s conclusion?

MR WILSON:   The reason why we say, notwithstanding the challenge to the assumption of trivial smoking, it is available to put forth the argument that the silica exposure caused damage is this:  there was medical evidence on both sides that silica exposure and cigarette smoking are synergistic in causing the changes of emphysema.  Can I take your Honours to, first of all, Dr Field, appeal book 76.25 where her Honour observes, “Dr Field” – and this is the doctor that her Honour primarily relied upon:

Dr Field said referring to the literature studies that there was a consistency which suggested that maybe the inhalation of silica aggravated the effect of smoking.

Secondly, there is Professor Alpers, who was also a doctor relied on by the respondents, at page 90 line 33, where her Honour observes:

Professor Alpers agreed that usually smokers do not present with problems until later in life.  Exposure to dust combined with smoking will add to the potential pathology.

Then, your Honours, there is the evidence of Professor Williams himself, at 147 of the appeal book about point 7, four lines from the bottom, where the doctor observed:

I do accept that there is evidence to suggest that the combination of cigarette smoking and silica exposure are synergistic in causing the changes of emphysema but I do not believe that his present level of disability is due to his mild cigarette smoking history.

So we say that the finding of the Court of Appeal that the further evidence did not subvert the finding of the trial judge that the applicant’s respiratory systems were explicable due to cigarette smoking cannot stand, because if one applies the test, the correct test enunciated by her Honour, one is able to come to the conclusion that exposure to silica and silicosis satisfied the material contributing cause.  That is the test she sets out at page 38 of the appeal book, relying on the decision of Bonnington v Wardlaw.

Your Honours, the third reason we say that the findings of the Court of Appeal are open to challenge are these.  Whilst the trial judge found that the smoking history was not trivial, she did not make a positive finding as to what the level of consumption was.  Her reasoning was not that the level of smoking was such that it was the cause of his problem; rather, it was at the level of exposure to silica, in the absence of evidence of silicosis, could not have been responsible.  I will need to go to the evidence, but the proposition I wish to make out is that Dr McKenzie and Professor Alpers gave their opinions on the basis of a history of 10 cigarettes per day for 20 years.  That appears at page 78 of the appeal book for Dr McKenzie ‑ ‑ ‑

GLEESON CJ:   But if what he told personnel at the Prince of Wales Department of Respiratory Medicine on 22 January 1992 was true, that was wrong.

MR WILSON:   Her Honour found that, yes.  Your Honour, the application raises a question of whether or not, in the circumstances of the Court of Appeal erring, this Court’s decision in CDJ v VAJ (1998) 197 CLR 172 should have permitted the Court of Appeal to admit the further evidence and order a new trial. The applicant’s evidence, in our submission, was credible and probative. If accepted, it was likely to produce a different result, but the practicalities of the trial were these, that five doctors had provided reports, which were diametrically opposed. The hearing by the Court of Appeal to determine which body of medical evidence was to be believed would have involved cross‑examination of those doctors in the light of their earlier evidence at the trial.

Normally, the court would not order a new trial unless it came to the view, as this Court said in CDJ v VAJ, that the admission of new evidence will produce a different result, but the submission we wish to make is this, that in the circumstances that decision, CDJ v VAJ, permits an approach whereby, if the applicant’s evidence is credible and probative, it ought to be taken at its highest, and in circumstances where it is not practical for the Court of Appeal to unravel the diametrically opinions of the doctors, the

task of determining which body of medical opinion is to be accepted is a matter for the trial judge.

Your Honours, this authority is not on my list, but that was adopted by the New South Wales Court of Appeal in a decision in Gloverv Australian Ultra Concrete Floors Pty Ltd [2003] NSWCA 80. That was a decision under section 75A(8) and (9).

GLEESON CJ:   Thank you.  Your time is up.

MR WILSON:   Thank you, your Honour.

GLEESON CJ:   We do not need to hear you, Mr Tippett or Mr Barr. 

The applicant failed in an application before the Court of Appeal of the Northern Territory for a new trial on the ground of fresh evidence that was not reasonably available at the trial.  The Court of Appeal dismissed the appeal on a basis summarised by Justice Angel as follows: 

The new evidence simply does not subvert the basis of the trial judge’s conclusion that the appellant did not establish his case. 

The difficulty facing the application is that the trial judge, who was very critical of the applicant’s credibility and said that he had attempted to deceive his treating doctors, made a finding, not disturbed by the Court of Appeal, that the applicant’s contention that he had not smoked heavily was wrong. 

The fresh evidence, which is to the effect that the applicant manifested lung disease consequent upon silica exposure, could not have affected the trial judge’s rejection of the applicant’s evidence as to his smoking or her acceptance of an admission as to the amount that he smoked.  For that reason, the Court of Appeal held, as I said, that the new evidence did not subvert the basis of the trial judge’s conclusion that the applicant had not established that any incapacity he had resulted from silica dust exposure, rather than another cause.  The applicant has not demonstrated error in that reasoning. 

The application for special leave to appeal is refused with costs. 

AT 2.25 PM THE MATTER WAS CONCLUDED