(a) the level of generality at which a finding of a duty of care is to be made, and
(b) the extent to which a finding that a duty of care exists is immune from review.
161 As explained by Windeyer J in Mount Isa Mines Ltd v Pusey [1970] HCA 60; 125 CLR 383 at 397-398:
"Foreseeability here predicates the foresight of a reasonable man. … He is a man who notionally stood in the shoes of the defendant and had such knowledge, and capacity for care and foresight, as that defendant actually had and in addition such as a reasonable man in that position is expected to have. He is, in the words of Lord Wright in Bourhill v Young [1943] AC, at 111, 'a reasonable hypothetical observer'. He is not a seer who can foretell future occurrences that are quite unlikely according to the natural and ordinary course of events. Happenings that were fortuitous, in the sense that no reasonable man would have thought of them as within the range of possible consequences, cannot be said to have been reasonably foreseeable. And knowledge after the event, when it is easy to be wise, cannot shew that the event was foreseeable."
162 His Honour later stated, at 398-399:
"Whether at some time in the past the prospect of the happening of an event which in fact happened was such that it created an obligation to take precautions against it is called a question of fact. It is really a value judgment upon ascertained facts."
163 The value judgment may be described as a decision in point of law, but based upon ascertained facts. In the present case, the relevant facts must be those which were either known, or ought reasonably to have been known, to a manufacturer of asbestos products in, first, 1953.
164 His Honour noted at [175] that "[i]n 1939 the UK Inspector of Factories reported that, "it is not many years ago when the dust of asbestos was regarded as innocuous, while today it is recognised as highly dangerous". His Honour continued at [176]:
"Dr Smith, Director-General of Health in New South Wales, in his 1948 report confirmed the concern of industrial physicians and hygienists in relation to exposures to even small amounts of asbestos. At page 70 Dr Smith wrote in relation to a metal casting process:
'The exposure to asbestos was intermittent and of short duration, about five minutes at each pouring, and, as at the time asbestos was being used two or three times a week the dust hazard was considered to be small. However, in view of the dangers associated with asbestos dust it was advised a substitute such as magnesia… should be used.'"
165 His Honour referred to a number of articles and reports, available prior to 1953, which indicated an understanding of the dangers of working with asbestos in manufacturing. This was evidence from which it was open to be inferred that Amaca, as one of the major manufacturers of asbestos products in this country, would then have been aware of the fact that inhalation of asbestos dust was considered "highly dangerous". Inferences of this kind were drawn by the trial judge and involved findings of fact which could not properly be challenged on this appeal or by way of judicial review. In respect of brake linings which contained asbestos, which might be liberated as dust in a number of ways, the question was whether a duty of care was imposed on the manufacturer to take reasonable steps to avoid injury to workers using such products. That involved a question of law, based on findings of fact.
166 A factual finding was also to be made concerning the mechanism by which asbestos dust was created. His Honour found:
"19. Asbestos fibre was liberated from new brake linings in three ways. First, by Mr Booth using a hammer to punch a rivet through the brake lining so as to fix it to the metal shoe. The holes provided in the brake lining for the rivets did not line up exactly with the holes in the shoe. Secondly, by Mr Booth using an electric drill to ream out the holes for the rivets, when the misalignment was too great to allow the rivet to be forced through with a punch. Thirdly, by grinding the leading edge of the brake lining on a bench grinder to ensure smooth operation of the brakes; this was a very dusty process.
20. The liberated asbestos collected upon Mr Booth's clothes, the work-bench, and floor of the workshop. It was re-agitated into the atmosphere by brooms, passing feet, and the use of compressed air to clean the workbench.
21. Mr Booth said that it took four hours to replace the linings on a passenger vehicle, and up to three hours per wheel to replace the linings on commercial trucks."
167 There was no evidence called by Amaca (or for that matter Amaba) to suggest that the companies did not know how brake linings were inserted and removed or that dust was liberated in those processes. Rather, the first passage of which the appellant Amaca complains is that at [181], following a review of published articles dating from 1930-1957:
"This material and other documents in evidence to which I have not referred, persuade me that by 1953 - when the plaintiff began working as a motor mechanic - the inhalation of asbestos fibre by motor mechanics working on brake linings was generally recognised as dangerous, even at exposure levels below industrial standards, because of individual susceptibility to the cumulative effect of fibre inhalation, and the fact that no safe lower limit had been established."
168 Ground 12(a) referred to this paragraph as involving "the factual finding" of foreseeability for which there was no supportive evidence. In fact, as became apparent in the course of submissions, the paragraph does not make a finding as to foreseeability, but identifies that which was "generally recognised as dangerous" being a composite fact with a number of elements. The second complaint made about this paragraph was that it applied a "generalised test" insufficiently specific to this case: ground 12(b). There may be a real issue as to the level of generality at which a finding of foreseeability should be made, lest it be either meaningless (at too high a level) or too specific, thus eliding the separate concepts of duty, content of duty and breach. However, these factual findings cannot be said to be at too high a level of generality.
169 The third complaint was that foreseeability was determined without reference to the "class of persons" into which the plaintiff fell. The complaint was without foundation: his Honour expressly referred to "motor mechanics working on brake linings", which satisfies the relevant test.
170 Finally in relation to this paragraph, the appellants relied on the reference to "other documents in evidence to which I have not referred" as demonstrating an inadequacy of reasons. However, if the material to which reference was made was sufficient to allow the relevant inferences to be drawn, the fact that there was other material in evidence, supportive of those inferences, cannot assist on an appeal limited to a decision of the Tribunal in point of law. Nor can it demonstrate error on the face of the record for the purposes of prerogative relief. Judgments are not inadequate simply because the trial judge notes that there was further material of a supportive kind.
171 The appellants' complaints as to inferences drawn from the documents will be addressed below. The substance of the legal complaint was expressed in the following passage in par 90 of Amaca's written submissions:
"… upon the trial judge's test if there was any knowledge of any risk of any diseases to any class of industrial user in respect of any level of exposure and in respect of inhaling any type of asbestos, then that was sufficient to establish reasonable foreseeability in relation to a particular disease (here, mesothelioma), in relation to a particular class (here, motor mechanics), in respect of a particular level of exposure (here, light and intermittent) and in respect of a particular type of asbestos (here, chrysotile)."
172 Unfortunately, there is a degree of hyperbole inherent in this submission. It was not correct to assert that his Honour referred to "any class of industrial user" (he referred to "motor mechanics working on brake linings"), nor was it correct to say that he referred to "any level of exposure", when he referred to a class of persons "regularly and cumulatively exposed to the inhalation of asbestos fibres released from asbestos products upon which they worked in an industrial setting": at [183]. The words "light and intermittent" were Amaca's characterisation, not that adopted by the trial judge. Finally, although it is true that his Honour did not specify a particular type of asbestos, he relied upon material which did not distinguish between, for example, chrysotile and crocidolite.
173 Ground 12(d) in the notice of appeal (though not the summons, which contained no particulars) took issue with his Honour's conclusion at [186]:
"I find that in 1953 it was reasonably foreseeable by Amaca that an automotive mechanic who was, in the course of every week over many years, exposed to the inhalation of asbestos fibre released from brake linings upon which he worked with grinding tools, may contract an asbestos related disease."
174 The complaint in relation to this passage is that the finding of foreseeability was not specific to mesothelioma.
175 It was also incorrect to say that his Honour looked to the risk of "any diseases": he was concerned with asbestos-related diseases (meaning diseases caused by inhalation of asbestos) but not specifically mesothelioma. What Amaca needed to demonstrate was that a legally correct statement of the duty of care had to identify the specific disease which eventuated, rather than a range of possible diseases.
176 To make good its legal propositions, Amaca relied upon three cases. It is convenient to address first the decision of the High Court in Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51.
177 Questions of foreseeability may arise in relation to the existence of a duty of care, in relation to whether particular conduct constitutes breach of the duty and in relation to the extent of damages recoverable. At the first point, it is commonly said that factual findings may be made at a higher level of generality when dealing with duty, than when dealing with breach: see Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [73] (Gummow J) approved by the Full Court in Turano. However, as his Honour also said in Vairy, the level of abstraction should not be such as to render the formulation of duty in terms which are "devoid of meaningful content". McHugh J in Vairy noted at [26] that:
"… the duty owed by motorists to other users of the highway, for example, is expressed in terms of the duty to take reasonable care for the safety of other users of the highway having regard to all the circumstances of the case. The duty is not subdivided into categories such as a duty to keep a proper lookout or sound a warning or to keep a safe distance away from the car in front. In the particular circumstances of the case, failure to do one or more of these things may constitute a breach of the duty to take reasonable care. But they are not themselves legal duties for the purpose of the law of negligence. If they were, a trial judge would be bound to direct a jury in the circumstances of a particular case that the defendant had a duty to keep a proper lookout or sound his or her horn, as the case may be."
178 To similar effect, Hayne J stated that "a statutory authority, having the care, control and management of land to which the public has access, owes a duty of care to those who enter": at [117]. His Honour continued at [118]:
"That may suggest that an attempt should be made to define the content of the Council's duty of care more precisely. Subject to one qualification, that would not be a useful exercise. The qualification is that it is necessary to recognise that the duty of care, owed by a statutory authority to those who enter land of which the authority has the care, control and management, is not a duty to ensure that no harm befalls the entrant. It is a duty to take reasonable care. Beyond that, however, it is not possible to amplify the content of the duty without reference to particular facts and circumstances. In each case, the content of the duty will turn critically upon the particular facts and circumstances."
179 Hayne J further noted that because the inquiry in this respect is prospective, "it would be wrong to focus exclusively upon the particular way in which the accident that has happened came about": at [124].
180 In the present case, the question was whether Amaca, as the manufacturer of products containing asbestos, owed a duty to take reasonable care in the manufacture and distribution of such products to workers who might be required to grind or otherwise manipulate the product in such a way as to release asbestos. No doubt the particular nature of particular products and their intended purpose may require those characteristics to be taken into account in a particular case, but once it is known that release of asbestos dust causes a risk to health, the duty does not need to be defined more precisely. The fact that the ingestion or inhaling of asbestos may affect different individuals in different ways will not affect the existence of the duty. Accordingly, his Honour was entitled to consider the facts by reference to asbestos-related disease, rather than the specific disease suffered by the respondent. Grounds 12(b)-(d) should be rejected.
181 There remains a question as to whether the appellants are correct in saying there was "no evidence" (and no reference to any evidence) which could support the factual findings. The first document referred to by the primary judge was by Merewether and Price, United Kingdom, Home Office, Report on the Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industries (1930). The report concluded that "the inhalation of asbestos dust over a period of years results in the development of a serious type of fibrosis of the lungs", p 4, which was then described: p 9. The report acknowledged that different asbestos processes cause different amounts of dust in the air of workrooms and that in some processes the level of dust was insignificant: p 12. The report noted that the concentration of dust and the length of exposure were relevant factors, although the evidence as to how those factors operated was then far from clear: p 13. There was considerable discussion as to the processes giving rise to dust and methods for its suppression, in Part 2 of the report. Of seven industries considered, the fourth was "brake and clutch linings": p 18. In the introduction to a consideration of these industries, the report noted at p 19:
"Apart from manufacture, certain work is carried on in premises subject to the Factory and Workshops Acts, as well as in other premises, which involves use or manipulation of asbestos or products containing it."
182 The discussion of brake and clutch linings was given separate consideration, although the description of the process (at pp 28-29) focused primarily on manufacture. The same is true of the summary and recommendations of the report. Nevertheless, the passages noted above indicate that the essential concern was exposure to asbestos dust, the mechanism being relevant only as a cause of such exposure.
183 The second article referred to, "Silicosis and Asbestosis: Memorandum on Industrial Diseases of Silicosis and Asbestosis" (October 1932), was published in a journal known as The Quarry and Road Making, at p 420. The appellants described the article as of unknown provenance and in "an obscure publication". The appellants asserted that although the respondent instructed two experts to carry out a literature research, neither referred to the article.
184 As the respondent pointed out, that statement was erroneous. In a report of 20 July 2009, Dr James Leigh, identified some 30 specific papers published before 1940 referring to the dangers of asbestos, including that article. (The appellants' written submission in reply did not acknowledge the error; it was acknowledged in oral submissions.) The article noted that various processes involved exposure to asbestos dust, including "the sawing, grinding and turning in the dry state of articles composed wholly or partly of asbestos such as motor car brake and clutch linings …": p 422.
185 The appellants also asserted a factual matter, namely that there was no evidence that the article "ever came to Australia". The respondent identified an exhibit demonstrating the contrary: Ex PX29, Annexure 11. Dr Leigh said that "[q]uantified dust levels in asbestos work were first reported in New South Wales in 1938' and various attempts were made to establish a threshold level of exposure: Ex PX22, p 4.
186 The third article relied on by the primary judge was the United Kingdom Home Office's Annual Report of the Chief Inspector of Factories for the Year 1938 (July 1939), which noted the recognition of asbestos dust as "highly dangerous": at p 63.
187 The fourth document was the New South Wales Department of Public Health's Report of the Director-General of Public Health NSW, 1948. The appellants stated that there were "only minor references to asbestos". That was true, but largely beside the point. Under the heading "Asbestos as Heat Insulation in Steel Moulding", the report contained at p 70 a passage quoted by the trial judge at [176] and set out at [164] above.
188 In considering whether the risk posed by exposure to asbestos dust was foreseeable, the trial judge noted at [182] the reasoning of Bryson JA in Seltsam Pty Ltd v McNeill [2006] NSWCA 158; 4 DDCR 1 at [36] with respect to the need to identify a class of persons who might be exposed to asbestos dust in the course of industrial operations. This approach had been accepted in McPherson's Ltd v Eaton [2005] NSWCA 435; 65 NSWLR 187 and, more recently, in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649. In this, his Honour was correct. While the evidence available in 1953 might not have demonstrated a significant risk to persons exposed to low levels of dust on rare occasions, such as in the course of home renovations, the risk of exposure in an industrial setting where the exposure was likely to be encountered weekly, daily or more often, over months or years, and the need to take precautions against the risk of serious injury was, by 1953, well-supported in the evidence. The articles to which his Honour referred were capable of supporting the relevant inferences. The volume of additional material contained in the evidence, including expert assessments of additional material which was not in the evidence, also supported the relevant inferences. Ground 12(a) in the Amaca notice of appeal is rejected.
(8) Duty of care: foreseeability - Amaba: ground 12
189 Amaba's amended notice of appeal differed from that of Amaca in a number of minor respects. First, and most importantly, reference was made to other dates. Amaba produced products used by the respondent between 1962 and 1983. Accordingly, the point of time that foreseeability that an automotive mechanic could suffer injury was identified as being "from 1962, or at any time prior to 1962 to 1983". At [198], his Honour held:
"In 1962 it was reasonably foreseeable by Amaba that an automotive mechanic who worked on brake linings over many years may contract an asbestos related disease."
190 Secondly, there was no complaint of lack of adequate reasons in respect of the finding regarding Amaba, but rather a complaint as to a finding of "actual knowledge of the specific risk of contracting mesothelioma in the absence of any evidence to support such a finding": ground 12(e).
191 In addition to the earlier material referred to in relation to Amaca, his Honour also referred to an article, "Complications of Asbestosis" (30 April 1960, British Medical Journal at p 1345, identifying mesothelioma of the pleura as a specific hazard in respect of a person who has worked in asbestos dust. The article stated (at 1351) that "asbestos dust is most toxic and the amount needed to cause asbestosis is not known so constant vigilance and new preventive measures are needed if this disease is to be abolished": quoted by the primary judge at [187].
192 There is no need, in the light of the previous finding, to deal with all the specific criticisms made by Amaba in relation to the additional and later material. The criticisms are, for the most part, without substance. Thus, an article is dismissed as apparently irrelevant (though that is not always expressly stated) if it referred to the hazards of asbestos dust, without expressly referring to automotive mechanics working with brake linings. In effect, this criticism confused two separate issues. The first was whether there was available to a specialist manufacturer of asbestos products, such as Amaba (or Amaca), information making it foreseeable that exposure to asbestos dust might involve risks to the health of workers so exposed. A second and separate issue was whether workers in a particular occupation were so exposed. As will be noted below, the negligence of the appellants was identified as the failure to give a warning. Whether or not such a warning should have accompanied brake linings depended on (a) whether it was reasonably foreseeable that those automotive mechanics responsible for removing and fitting brake linings would be exposed to asbestos dust and, (b) whether such exposure carried with it a risk to health. No issue is raised on the appeal (or it appears below) as to the knowledge of Amaca or Amaba in respect of the industrial processes engaged in by automotive mechanics removing and fitting brake linings. There is no complaint that his Honour could not have found that it was reasonably foreseeable to Amaca and Amaba that automotive mechanics undertaking that task would be exposed to asbestos dust. Accordingly, it was open to his Honour to find that the risks to health were foreseeable on the basis of material which did not relate specifically to automotive mechanics.
193 Three further articles were referred to by the trial judge which bore dates between 1953 and 1962: judgment at [173]-[179]. One, "Dust Hazard in Industry", attributed to editorial staff, appeared in an Australian trade journal known as Manufacturing and Management, published 10 July 1956: at [178]. It referred to a study undertaken by the Industrial Hygiene Division of the Victorian Health Department under the supervision of Dr D L G Thomas. Under the heading "Asbestos" it referred to asbestosis, of which it said at p 21:
"People prone to the disease are those handling asbestos in its raw state or processing it to make lagging materials; also operatives sawing and cutting any finished product containing asbestos such as brake linings, asbestos sheeting and various insulating materials. Dismantling old dry lagging is a hazardous occupation.