Court of Appeal (WA)|2007-08-02|Before: Martin CJ

AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) -v- MOSS [2007] WASCA 162 (2 August 2007)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) -v- MOSS [2007] WASCA 162

BETWEEN : AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) (ACN 000 035 512)

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : MOSS -v- AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) [2006] WASC 311

Torts - Negligence - Non-occupational exposure to respirable asbestos fibre - Whether there is any material distinction between "bystander" and "handyman" exposure - Where exposure was very limited by reason of casual work on asbestos cement products - Causation - Legal principles - Whether causation established - Asbestos-related disease terms: "background exposure" and "background risk" - Whether evidential burden discharged by leading evidence displacing the plaintiff's prima facie case - Evidential burden and burden of proof distinguished - Duty of care - Duty to warn - Whether warnings and cautions were sufficient to discharge duty - Whether risk of contracting mesothelioma was foreseeable

Damages - Assessment of damages - Mesothelioma - Appeal against award for damages

1 Amaca Pty Ltd ("Amaca") appeals from a decision of a Judge of this Court awarding damages to Dennis Walter John Moss ("Mr Moss") in respect of the mesothelioma from which he now suffers. On four separate occasions during 1989 and 1990, Mr Moss had limited non-occupational exposure to respirable asbestos fibre released as a result of work which on three of those four occasions he carried out himself, and on one of those four occasions as a result of work which Mr Moss observed carried out by another, on asbestos cement products manufactured by Amaca. The trial Judge distinguished between exposures of the former kind, which he described as "handyman exposure" and exposures of the latter kind, which he described as "bystander exposure". He found that by at least 1989, the risk to persons carrying out handyman work on asbestos cement products for limited times and very occasionally, was sufficiently foreseeable to impose upon Amaca a duty to warn such persons by the affixation of warnings to its products and the placement of regular advertisements in newspapers to warn against carrying out work which would expose the worker to respirable fibres. The trial Judge further found that Amaca's breach of that duty caused Mr Moss to contract mesothelioma. Amaca challenges each of these findings. The trial Judge also found that at the time of Mr Moss' bystander exposure, the risk to persons exposed to respirable asbestos fibre in that way was not sufficiently foreseeable to impose any duty of care upon Amaca.

2 The trial was conducted at the same time by the same Judge and involved receipt of much of the same evidence as was led in the claim against Amaca brought by David Richard Hannell. Amaca's appeal from the decision in that case was heard at the same time as this appeal. Some, but of course not all of the findings of fact made by the trial Judge in each case are identical. The processes of reasoning adopted by the trial Judge in each case are identical, save for the reasoning he adopted in relation to the issue concerning the duty of care with respect to bystander exposure - an issue which did not arise in the Hannell case. In the interests of consistency and brevity, wherever possible in these reasons I will adopt by reference those portions of the reasons I have expressed in relation to the Hannell appeal as are applicable to this appeal.

3 For the reasons which follow, in my opinion the trial Judge was wrong to draw a distinction in principle between the handyman exposure and the bystander exposure experienced by Mr Moss, for the purposes of determining the scope of Amaca's duty of care. In the case of each type of exposure, the question was whether Amaca owed a duty to warn those who might be exposed to relatively low levels of respirable asbestos fibre as a result of work carried out on asbestos cement products in a non-occupational environment. Further, for the reasons which follow, augmented by the reasons expressed in the Hannell appeal to the extent they are adopted in this appeal, when regard is had to the very limited exposure to respirable asbestos fibre experienced by Mr Moss in the course of each of the four occasions he identified, the evidence failed to establish that:

(b) the risk of contracting mesothelioma from limited and occasional exposure to respirable asbestos fibre at the levels likely to be experienced in the course of work on asbestos cement products of the kind undertaken and observed by Mr Moss was sufficiently foreseeable at the time those asbestos cement products were manufactured to impose a duty upon Amaca to place warning labels upon them;

(c) by the time of Mr Moss' exposures, it was sufficiently foreseeable to require Amaca to embark upon an advertising campaign directed at those who might experience exposures of the kind experienced by Mr Moss; and

(d) if Amaca had affixed warning labels to its asbestos cement products, or had embarked upon an advertising campaign of the kind suggested, Mr Moss would not have been exposed to respirable asbestos fibre on the four occasions he has identified.

4 In [36] - [41] of his reasons for decision in this case, the trial Judge made identical findings to those made in the Hannell case in relation to the general nature of the disease mesothelioma, its aetiology and its relationship to the inhalation of asbestos fibre. Those findings are set out at [3] of my reasons in the Hannell appeal, and are adopted. They provide a convenient context for the issues which were in contest in this case.

5 Mr Moss was born in the United Kingdom in August 1927. He was born in Surrey and grew up in the County of Sussex. Since leaving school at the age of 16 in 1943, he has worked as a professional musician in a variety of capacities. In those capacities he has travelled the world.

6 In March 1989 Mr Moss immigrated to Western Australia with his wife. After staying for about a month at a residential college at the University of Western Australia, he and his wife purchased a house in Trailwood Drive in Woodvale. They have lived there ever since.

7 The specific incidents of exposure identified by Mr Moss all took place as a result of his contact with asbestos cement products which were used in the construction of his house in Trailwood Drive, Woodvale and in fences constructed on that property. The trial Judge found that all relevant asbestos cement products were manufactured and installed at that property in the late 1970s and early 1980s. That finding was not challenged.

8 The findings made by the trial Judge with respect to Mr Moss' specific exposures to respirable asbestos fibre have not been challenged. They were made in the following terms (reasons [42] - [48]):

"The first exposure involved observing a handyman demolish a firewood bunker and pool equipment house on the right boundary side of the plaintiff's property, and disposing of the waste. The plaintiff hired a handyman to demolish and replace both structures in about June 1989. The handyman removed the asbestos cement sheetings from both structures, rebuilt the structures, and left the old cement sheets in the plaintiff's garage. The plaintiff's evidence, which I accept, was that he would chat to the handyman at different periods throughout the day, while the handyman was doing the work.

Over the course of two or three weeks following the handyman's work, the plaintiff broke up the sheets of asbestos cement using an axe and then placed them in a rubbish bin for disposal. The process of cracking the sheets apart gave off dust, which settled on the plaintiff's clothes. The plaintiff swept up the smaller pieces of sheeting (which itself created more dust) and any dust that had settled in the area, putting it all in the rubbish bin. Each time the plaintiff dumped these smaller pieces in the rubbish, a small cloud of dust was given off. The plaintiff did not wet down the asbestos before handling it, and took no other measures to protect himself from the dust given off by this work.

The second exposure took place in about July 1989, when the plaintiff broke a hole through the bottom of a corrugated asbestos fence near the plaintiff's patio. To help drain off dirty water from backwash from the pool, the plaintiff knocked a hole about 20 cm in diameter in the asbestos fence and fed a hose from the pool filter through the opening. The plaintiff crouched down to knock the hole in the fence and also disposed of the pieces of asbestos by hand. This process took about 10 minutes to complete.

The third event involved the plaintiff observing his neighbour using a power tool to cut the top off the corrugated asbestos fence running between their two properties. This event occurred in the early 1990s. The plaintiff's neighbour was clearing their garden, and removed large tree shrubs and a very large section of bougainvillea from the dividing asbestos fence. These plants had grown over the fence, attaching themselves to it, such that as they were pulled away from the fence, pieces of the fence came away too, leaving the top of the fence damaged. The plaintiff's neighbour then used a power tool to cut horizontally through the fence, reducing the height of the fence by about a foot, along about 10 metes of the fence.

The plaintiff was standing within a few metres of the neighbour whilst the neighbour was using the power tool to cut into the asbestos. At times, the plaintiff was trying to talk to his neighbour as the neighbour was going about the cutting. The act of cutting through the fence in this manner gave off a grey dust, 'like a fine grey spray that could be seen very easily' and which subsequently settled around the fence area.

Following this event, the plaintiff was concerned about lacking privacy, because the neighbours could then 'see right in to our kitchen and back living area'. The plaintiff hired a handyman to affix lattice to the top of the dividing asbestos fence. The plaintiff would come out to offer the handyman a cup of tea or sandwich, and would then chat to him while he worked. The plaintiff watched the handyman while the handyman used an electric drill to fix the lattice to the fence. The drilling caused a spray of fine dust from the fence. The plaintiff testified that he would have breathed some of this dust in. He did not take any protective measures to avoid the dust and does not recall the handyman wearing a mask while working. I find that on the balance of probabilities, the plaintiff breathed in dust from the asbestos cement fence while the handyman drilled into the fence.

The fourth exposure to asbestos resulted from the plaintiff again breaking up and disposing of asbestos cement sheeting. In or about 1990, the plaintiff noticed that a large date palm in the garage area had caused two panels of asbestos cement fencing to crack. The crack was wide enough to let the neighbour's dog through to the plaintiff's property. The plaintiff hired a specialist to remove the palm tree, then hired another handyman to replace the two panels. The handyman left behind the unwanted pieces of asbestos cement. As on the earlier occasion, the plaintiff used an axe to break the corrugated asbestos sheets into smaller pieces, and disposed of these in a rubbish bin. The plaintiff swept up the smaller pieces and placed these in a rubbish bin. The plaintiff bent over to break up the panels. The process of breaking up the panels and sweeping was quite dusty, and the plaintiff was breathing in the dust as he worked."

9 The trial Judge also found that the asbestos cement products to which Mr Moss was exposed were made up of a mixture of cement, silica and asbestos. The asbestos comprises between 8 to 15 per cent of the product. The evidence established that almost all of the asbestos was chrysotile, with a very small proportion (about 1 per cent) being amosite.

10 The observations I have made on the general subject of background exposure in [13] - [16] of the Hannell appeal are equally applicable to this appeal and are adopted.

11 Mr Moss lived in urbanised environments in the United Kingdom as a child. He lived in the same house from the age of 7 until leaving home at the age of 18. The house was new at the time his family moved in. He was not aware of the presence of any asbestos in that house, or in the school he attended.

12 After leaving school at the age of 16 he was employed to play the saxophone with a quintet which played in a dance hall in Brighton. Mr Moss cannot recall any exposure to asbestos in Brighton.

13 In 1945, at the age of 18, Mr Moss was conscripted. Between 1945 and 1948 he served in the Royal Air Force in the United Kingdom, playing in the air force band as a musician. Again, he cannot recall any exposure to asbestos during this time. In the course of his service, he was posted to a number of airfields at various places in the United Kingdom.

14 After being demobilised from the air force, he joined a band with 16 or 17 musicians, touring throughout the United Kingdom. The band travelled constantly, staying in different hotels or bed and breakfast establishments, and playing in different dance halls. He cannot recall any specific exposure to asbestos over this time.

15 Mr Moss was employed in a similar capacity with other bands over the next five or six years, travelling extensively throughout the United Kingdom over this period. After joining a jazz band led by Ted Heath, Mr Moss commenced a series of international tours including Europe, Australia and New Zealand. Later he again toured internationally while working in a band led by John Dankworth.

16 By the early to mid 1960s, Mr Moss commenced work as a freelance saxophone player and soloist, again touring regularly throughout the United Kingdom.

17 Mr Moss continued working in this way during the 1970s, being invited to play at major jazz festivals all over Europe. During the 1980s, Mr Moss continued his work as a touring jazz musician, and played in Australia in 1982 and again in 1984, before migrating to Perth in 1989.

18 Having lived his life in urbanised environments, being based in the United Kingdom and Australia, and having travelled extensively, there is no doubt that Mr Moss has been exposed to the respirable asbestos fibre which is in the ambient environment in virtually all urbanised areas of the world, and the trial Judge so found.

19 The evidence-in-chief given by Mr Moss was given primarily through the form of his adoption of a witness statement. In that statement he asserted that:

"The only exposure to asbestos that I can possibly recall are the exposures to asbestos as described above, after we moved to ... Trailwood Drive in Woodvale, Western Australia."

20 Mr Moss was cross-examined on that assertion. He was asked about the components of the houses in which he has lived, and the school which he attended, which might have resulted in exposure to asbestos - including hot water systems, insulation, oven mitts, internal walls and insulation. Mr Moss was unable to recall any specific exposure to any items made up of asbestos, or the presence of any walls made of material including asbestos in any of the buildings he had lived in. He readily acknowledged that he was unable to say whether those buildings did include any components made from materials including asbestos, and said that before being afflicted with mesothelioma he had no idea of the possible risks or hazards associated with asbestos. It is therefore a fair inference that he would not have taken any particular interest in the question of whether or not any of the places in which he lived or worked or studied contained components made from material including asbestos.

21 As a result of this line of cross-examination, the trial Judge made a finding at [55] in exactly the same terms as the corresponding finding which he made in the Hannell case - namely that:

"[n]ot only that the plaintiff did not recognise or recall any specific asbestos exposure but on the balance of probabilities the plaintiff did not experience any other specific asbestos exposure."

22 For the reasons I have set out in [20] - [26] of my reasons in the Hannell appeal, in my view the trial Judge was wrong to make this finding. In my view that finding is vitiated by the logical flaw to which I have referred in the Hannell appeal, and by the further fact that Mr Moss' peripatetic lifestyle must necessarily have caused him to live and work in a very large number of buildings in various parts of the world. It is inherently likely that at least some of those buildings were comprised of or included materials containing asbestos, given the widespread use of those materials.

23 As in the Hannell case, the trial Judge used this particular finding as one of the reasons for rejecting the expert evidence adduced by Amaca. For the reasons I have expressed in the Hannell appeal, in my respectful opinion he was wrong to do so.

24 The portion of the reasons of the trial Judge in which he considered the legal principles applicable to the question of causation is identical to the corresponding portion of the reasons he expressed in the Hannell case. The views I have expressed in the Hannell appeal at [27] - [30] are therefore equally applicable to Mr Moss' case, and are adopted.

25 As in the Hannell case, the trial Judge approached the case on the basis that any increase in risk above that which would fall within the de minimis principle would be sufficient to sustain the claim unless Amaca discharged the burden of adducing evidence which established that Mr Moss would have contracted mesothelioma in any event in the absence of the specific exposures he had identified at his residence in Trailwood Drive, Woodvale. For the reasons expressed by me in [31] - [44] of my reasons in the Hannell appeal, which are adopted, in my view he was in error to take that approach.

26 As in Hannell's case, in this case the trial Judge appears to have taken observations made by McLure JA, in the City of Stirling v Tremeer [2006] WASCA 73; (2006) 32 WAR 155 as authority for the proposition that the evidentiary onus imposed upon a defendant once the plaintiff has established that a breach of duty has occurred followed by injury within the area of the foreseeable risk, will only be discharged if the defendant adduces evidence which establishes, on the balance of the probabilities, that the risk would have eventuated notwithstanding the breach of duty. For the reasons I have expressed in [45] - [50] of my reasons in the Hannell appeal, which are adopted, in my respectful opinion the trial Judge was wrong to take this approach.

27 As in the Hannell case, the trial Judge analysed the expert evidence which had been adduced and concluded that he should attach no weight to the evidence given by the experts called by Amaca and that he preferred the evidence of the witnesses called on behalf of Mr Moss. Although the evidence given by those witnesses is in many respects similar to the evidence which they gave in the Hannell case, it differed to the extent that the specific exposures experienced by Mr Moss differed from the specific exposures experienced by Mr Hannell. It is therefore necessary and appropriate to analyse the evidence given by the various experts, at least in that respect.

28 I have set out Mr Rogers' qualifications and experience at [52] - [53] of my reasons in the Hannell appeal. Those paragraphs are adopted.

29 Mr Rogers produced a report dated 5 April 2006 in which he set out the opinions he had formed in relation to the issues arising in Mr Moss' case, and his reasons for those opinions. During his evidence-in-chief he affirmed that the contents of his report were true and correct. When the report was tendered in evidence, two objections were made by counsel for Mr Moss - each objection relating to a specific paragraph in the report. One objection was conceded and the paragraph deleted. The other objection related to a paragraph in which Mr Rogers expressed views about the likelihood of Mr Moss being exposed to materials containing asbestos during the course of his work as a professional musician in the United Kingdom. That objection was dismissed on the basis that the paragraph should be read as not conveying anything more than an assertion that Mr Moss was likely to have received the same degree of environmental exposure as every other person resident in an urbanised community.

30 Mr Rogers prepared a further report dated 25 April 2006, which contains some additional calculations and estimates of exposure experienced by Mr Moss, and the risks associated with that exposure. That report was affirmed by Mr Rogers in oral evidence and tendered without objection.

31 In his first report Mr Rogers sets out the assumptions he had made in relation to the specific exposures identified by Mr Moss. Those assumptions correspond to the findings of fact made by the trial Judge and which I have set out above.

32 As with his report in the Hannell case, Mr Rogers sets out the various studies and reports upon which he has relied for his estimate of the levels of exposure to respirable fibre experienced by Mr Moss in the course of the specific incidents he identified, and refers to those studies which he considered most pertinent to the activities carried out by Mr Moss in the text of his report.

33 Mr Rogers then applied his estimate of the likely levels of respirable fibres released in the course of the activities undertaken by Mr Moss to the four specific incidents he had identified, in order to calculate likely maximum levels of exposure.

34 In relation to the first specific incident, Mr Rogers estimated that exposure while removing asbestos sheets and stacking them in the garage, and while breaking up the sheets for the purpose of insertion into the rubbish bin, would have been at a level of 0.1 fibre per ml or less, producing, on the basis of time estimates which he made, total cumulative exposure for that incident of 0.000019 fibre/ml years or less.

35 Mr Rogers applied the same assumption to the second incident identified by Mr Moss, which involved only 10 minutes work. Mr Rogers calculates total cumulative exposure in the course of that incident at 0.0000008 fibre/ml years or less.

36 In relation to the third incident, being the incident described as "bystander exposure" by the Judge, Mr Rogers assumed that the exposure suffered by Mr Moss would have been identical to that experienced by the tradesmen undertaking the cutting work on the fence - an assumption plainly favourable to Mr Moss, given that he was only an observer - and applied a test result from a study involving tradesmen in Western Australia cutting Supersix fence with an angle-grinder which produced an exposure level of 0.8 fibres per ml. Mr Rogers also assumed that Mr Moss would only have been observing the work for about 10 per cent of the time it was undertaken.

37 Similar but not identical assumptions were made in relation to the work undertaken by Mr Moss with respect to the affixation of lattice to the top of the fence using an electric drill. As a result of those assumptions and calculations, Mr Rogers calculated that Mr Moss' total cumulative exposure in respect of the third incident was 0.000076 fibre/ml years or less.

38 In relation to the fourth specific incident of exposure, which involved the removal of fence panels and breaking them up to place them in household rubbish over a period of approximately one hour, Mr Rogers made the assumption that exposure of 0.1 fibre/ml would have been occasioned, with the result that cumulative exposure was 0.0001 fibre/ml years or less.

39 Thus Mr Rogers calculated the total cumulative exposure arising from all four incidents at 0.00019 fibre/ml years or less.

40 Mr Rogers' report then assessed the increment in risk occasioned by those cumulative exposures using the same methodology as I described at [61] of my reasons in the Hannell appeal, which are adopted. Because risk is related to age at first exposure, and Mr Moss was over 60 years of age at the time of the first incident of specific exposure he has identified, in Mr Rogers' view the risk actually suffered by Mr Moss as a result of the specific incidents of exposure he identified would have been much less than the risk calculated by the application of the Peto formulae. However, applying those formulae, Mr Rogers calculated that the increased risk of contracting mesothelioma as a result of the four incidents of exposure identified by Mr Moss was less than 0.004 per million. Mr Rogers then adjusted that risk level to account for the fact that the type of asbestos to which Mr Moss was exposed was chrysotile to conclude that the increment in lifetime risk experienced by Mr Moss as a result of the specific incidents he had identified was 0.0008 per million or less.

41 Mr Rogers then dealt in his report with the extent of the background risk experienced by all members of an urbanised community, in the same terms as I have described at [62] of my reasons in the Hannell appeal which are adopted. Using the range in risks occasioned by background exposure and applying the estimated risk rates to the increment in risk he had calculated arising from the four specific incidents identified by Mr Moss, Mr Rogers estimated that the percentage increase in lifetime risk experienced by Mr Moss over and above that of natural ground risk ranged between 0.0003 per cent or less to 0.0011 per cent or less, depending upon the assumption one made as to the level of background risk. Applying the Australian population data, Mr Rogers concluded that there is a 99.999 per cent probability that the mesothelioma experienced by Mr Moss would have been experienced by him regardless of his exposure to asbestos in the four incidents he identified.

42 Mr Rogers also observes in his report that in Mr Moss' case, the latency period, being the period between his first identified exposure and diagnosis, at 15 or 16 years, would be amongst the shortest recorded if there was a causal connection between those exposures and his mesothelioma. He observed that the typical range of latency periods was between 25 and 45 years, with a peak at around 35 to 37 years since first exposure, and that latency periods of 20 years or less are rare.

43 In his second report Mr Rogers performed further calculations based on slightly varied assumptions - being, in particular, different assumptions as to time (increasing the assumed times of exposure in each case).

44 Following those calculations Mr Rogers estimated the total cumulative exposure experienced by Mr Moss in the four incidents he identified at 0.00043 fibre/ml years or less - or a little over double his original estimate of exposure. Application of that assumed exposure to the calculation of the increment in lifetime risk also produced a revised estimate of 0.0017 per million - which is again a little over double the original estimate. However, because these levels are so low compared to the level of risk experienced by all residents of urbanised communities as a result of background exposure, these differing calculations made no material difference to Mr Rogers' assessment of the probability that Mr Moss would have experienced mesothelioma regardless of his specifically identified exposures. In Mr Rogers' view, that probability remained around 99.999 per cent.

45 So, as in the Hannell case, on Mr Rogers' evidence, the increased risk of contracting mesothelioma as a result of Mr Moss' specifically identified exposures was many magnitudes away from enabling it to be concluded that those exposures were more likely than not to have caused or contributed to his mesothelioma. Even if the exposures and corresponding risks were multiplied by 100, on Mr Rogers' evidence, the probability that Mr Moss' mesothelioma was attributable to background risk would still be greater than 99 per cent.

46 The trial Judge applied the same process of reasoning to his evaluation of the evidence given by Mr Rogers in this case as he did in the Hannell case. For the same three reasons I have identified in my reasons in that case, the trial Judge concluded that he should give no weight to the evidence of Mr Rogers. In my respectful opinion, for the reasons I have given at [70] - [80] of my reasons in the Hannell appeal, the trial Judge erred in rejecting the evidence of Mr Rogers.

47 Mr Moss led evidence from Dr Eva Francis. I have described her qualifications and experience at [81] of my reasons in the Hannell appeal, which are adopted.

48 Dr Francis produced a report dated 2 May 2006 in which she recorded the assumptions she had made in relation to Mr Moss' exposures, and the opinions she had formed. That report was tendered without objection. The assumptions of fact made by Dr Francis with respect to the specific incidents in which Mr Moss was exposed to respirable asbestos fibre correspond with the findings of fact made by the trial Judge.

49 Dr Francis estimated that during the first specific incident identified by Mr Moss, he would have been exposed to airborne asbestos fibre levels of about 0.05 to 0.1 fibres per ml when working with a hammer, and at about 0.5 fibres per ml when breaking up the asbestos for inclusion in the rubbish bin.

50 In relation to the incident in which Mr Moss observed the cutting of an asbestos cement fence using an angle-grinder, on the assumption that Mr Moss was 2 to 3 metres away from the cutting activity, for about 80 per cent of one day, Dr Francis estimates that he would have been exposed to airborne asbestos levels of about 5 fibres per ml. In her view this equates to about 500 times general environmental background levels (or put another way, the same exposure every member of the community experiences merely by living in the community for a period of something less than 2 years).

51 Dr Francis estimated that the exposure experienced by Mr Moss at the time the handyman drilled the asbestos cement fence to affix lattice would have been 0.04 fibres per ml - or about four times general environmental background levels. She estimated that at the time he knocked a hole in the asbestos cement fence for about 10 minutes, he would have been exposed to airborne asbestos levels of about 0.4 fibres per ml - or about 40 times general environmental background levels. She further estimated that when he smashed the panels of the asbestos fence with a wood splitter and disposed of the pieces, he would have been exposed to airborne asbestos levels of about 0.5 fibres per ml.

52 According to Dr Francis, her estimate of total cumulative asbestos exposure was 0.02 fibre per ml years as a result of the specific incidents identified by Mr Moss. It will be observed that this is about one tenth of the exposure which she estimated had been experienced by Mr Hannell.

53 Further, as Dr Francis estimated ambient background environmental levels of exposure at 0.01 fibres per ml, it will be observed that on the evidence of Dr Francis, the total exposure experienced by Mr Moss in the four specific incidents he had identified was the equivalent to the exposure experienced by every member of an urbanised community in the course of two years of living in that community. Viewed another way, as Mr Moss was over 60 years of age at the time of the first specific exposure he has identified, on the evidence of Dr Francis his total cumulative exposure in the course of the four incidents he identified was about one thirtieth of the total exposure he had already experienced prior to those incidents.

54 Dr Francis was cross-examined by counsel for Amaca. The evidence given by her in cross-examination was received as evidence in both the Hannell and Moss cases.

55 In his evaluation of the evidence given by Dr Francis, the trial Judge adopted an identical process of evaluation to that adopted by him in the Hannell case. For the reasons I have given at [95] - [98] of my reasons in the Hannell appeal, and which I adopt, in my respectful opinion he was in error in failing to give any weight to her evidence. As with the evidence given by Mr Rogers, the orders of magnitude involved eliminate any need for mathematical accuracy or precision. The estimates of exposure made by Dr Francis could be multiplied by 10 or 100 times or even more without making any significant difference to the conclusion properly drawn from her evidence, which is to the effect that the exposures experienced by Mr Moss in the course of the four specific incidents he identified were, on any view, much less than the cumulative exposure he and every other member of the community experiences merely by living in the community over a significant period of time.

56 Amaca led evidence from Professor Geoffrey Berry. I have described his qualifications and experience at [99] of my reasons in the Hannell appeal, which I adopt.

57 The opinions formed by Professor Berry relevant to the claim by Mr Moss were reduced to writing in a report dated 13 April 2006, and a supplementary report dated 28 April 2006. Both reports were tendered without objection.

58 Professor Berry's first report follows much the same course as his report in the Hannell case, and the observations I have made at [100] - [104] of my reasons in the Hannell appeal are equally applicable to this appeal, and I adopt them.

59 Professor Berry noted that the first specific exposure identified by Mr Moss occurred when he was aged 62. Because of the geometric reduction in risk by reference to increased age at time of first exposure, Professor Berry expresses the view that the lifetime risk incurred by somebody with first exposure at age 60 years would be less than 2 per cent of the lifetime risk suffered by somebody having first exposure at age 30 years.

60 When he came to calculate the level of increased risk experienced by Mr Moss as a result of the specific exposures he identified, Professor Berry expressed the view that he would not place much weight on the actual figures of calculation, because the risks were so low that the actual number was largely irrelevant. As Professor Berry points out, taking the background risk as 7 per 100,000 (which is the lowest Australian estimate) and even multiplying the risk due to Mr Moss' known exposures by 10, his total risk would be 7.1 per 100,00, a relative increase in risk of about 1.5 per cent.

61 In his supplementary report Professor Berry refers to the opinion expressed by Dr Francis. Adopting her estimate of cumulative exposure in the course of the four specific incidents he had identified, Professor Berry calculates the increment in risk as a result of those exposures as being about 1 1/2 per cent. This corresponds with his earlier estimate, because it is to be remembered that in his earlier estimate he had, for the sake of argument, multiplied the estimate of exposure made by Mr Rogers by a factor of 10, which is approximately the difference between the estimates of exposure made by Mr Rogers and Dr Francis.

62 In his evaluation of Professor Berry's evidence, the trial Judge states (reasons [351]):

"Professor Berry took from Dr Francis' further report a cumulative exposure of 0.2 fibre per millilitre years and calculated that that would yield a relative risk in the range of 1.3 to 1.4."

This sentence is identical to a sentence in [295] of the reasons given by the trial Judge in the Hannell case. This may well be a transcription error, but in any event it is an error, because in the case of Mr Moss, Professor Berry correctly took from Dr Francis' report a cumulative exposure of 0.02 fibres per millilitre year, and in oral evidence estimated that such an exposure would produce a relative risk of between 1.004 and 1.006, which is of course a tiny increase in risk and much less than that which he estimated in Hannell's case. (I refer in this context to the helpful discussion of the notion of relative risk in the judgment of Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262, and to which I have referred in my reasons in the Hannell appeal.)

63 The erroneous sentence which I have set out above is followed in the reasons of the trial Judge by a paragraph which is identical to the paragraph which I have set out at [108] of my reasons in the Hannell case. The reasons I have expressed in Hannell for the view that the trial Judge erred in this respect, are equally applicable to this case and I adopt them. To those reasons should be added the further observation that when the evidence actually given by Professor Berry is substituted for that apparently erroneously transposed by the trial Judge from the Hannell case, and it is appreciated that his evidence was to the effect that the increment in risk experienced by Mr Moss as a result of the specific exposures he had identified was tiny and insignificant compared to the risk experienced as a result of background exposure, the proposition advanced by the trial Judge to the effect that acceptance of Professor Berry's evidence was not sufficient to discharge Amaca's evidential burden is untenable.

64 Amaca led evidence from Professor Antony Breslin. I have described his qualifications and experience at [114] of my reasons in the Hannell appeal, which I adopt. Professor Breslin's opinions relevant to the claim by Mr Moss were set out in reports dated 15 April 2006 and 26 April 2006. Those reports were received in evidence over objection taken to two specific paragraphs in the reports.

65 In his first report Professor Breslin set out the assumptions he had made with respect to the specific exposures identified by Mr Moss. Those assumptions correspond with the findings of fact made by the trial Judge and which I have set out above.

66 Professor Breslin observed that the total exposure identified by Mr Moss in the incidents to which he referred was exposure over a period of no more than three days. He further observed that even if one allowed for exposure of 5 fibres per ml over those days, which Professor Breslin thought to be "generous", this would produce a total exposure of 0.06 fibres per ml year, which is barely above background community asbestos exposure. Based on that very low exposure, Professor Breslin expressed the view in his report that the exposure made no significant contribution to the development of Mr Moss' mesothelioma.

67 In his second report, after referring to views which had been expressed by others, including Mr Rogers and Professor Berry, and reviewing clinical notes relating to Mr Moss, Professor Breslin confirmed that he adhered to the view he had previously expressed.

68 In the course of cross-examination Professor Breslin expressed the view that he was even more confident in his opinion that Mr Moss' specific exposures played no significant part in the development of his mesothelioma than he was in the case of Mr Hannell. He explained that this was partly because of the relationship between latency period and dose. As Mr Moss' latency period was at the very bottom end of recorded latency periods, in Professor Breslin's experience one would normally expect to see such a case associated with very high levels of exposure. But Mr Moss' exposure was at a very low level. Professor Breslin reiterated his view that the specific exposures experienced by Mr Moss in 1989 and 1990 played no significant part in the development of his mesothelioma. Although the inhalation of the fibres associated with those incidents may have added a little to his risk, in his view, it was "a very very tiny amount". Although he accepted that those fibres could not be excluded as a possible cause, in his view they played a negligible part because they were relatively recently inhaled and because it was a low dose.

69 The trial Judge's analysis of the evidence of Professor Breslin in the Moss case is somewhat different to the approach which he took in the Hannell case, although his conclusion is the same.

70 The trial Judge took the view that the observation by Professor Breslin to the effect that Mr Moss' total cumulative exposure of 0.06 fibre/ml, as a result of the specific incidents he identified as "barely above" background community asbestos exposure, was ambiguous (reasons [359]). He said of that observation:

"It may mean that the plaintiff's handyman and bystander exposures are greater than community background exposure or it might mean that handyman and bystander exposures together with community background exposure is barely above community background exposure alone and hence that handyman and bystander exposures are less than background exposure. The former, which is the natural meaning, is inconsistent with Professor Breslin's conclusion that the handyman and bystander exposures were not significant in causing or contributing to the plaintiff contracting mesothelioma. If Professor Breslin meant the latter then that conclusion or assumption is inconsistent with the evidence of Professor Musk, Dr Leigh, Professor Robinson and Professor Henderson, whose evidence I accept."

With respect, I am unable to see any ambiguity or uncertainty in the evidence given by Professor Breslin. There was no doubt that Mr Moss had experienced exposure to respirable fibre in the ambient environment at the same levels as all members of the community, and the trial Judge so found. The evidence of Professor Breslin was directed to the extent to which the specific incidents identified by Mr Moss had added to that exposure. His evidence was to the effect that the specific incidents identified by Mr Moss would have resulted in him being exposed to respirable asbestos fibre at levels above those found in the ambient environment, but only marginally above those levels.

71 Nor can I see any basis upon which Professor Breslin's evidence might be construed as suggesting that the exposure to respirable fibre experienced by Mr Moss in the specific incidents he had identified was less than background exposure. Those exposures were cumulative upon the exposure to respirable fibre in the ambient environment which Mr Moss had experienced. If the reference to "less than background exposure" in the passage I have set out above is a reference to the fact that the additional exposure experienced by Mr Moss in the course of the four incidents he identified was less than the total exposure he had experienced from the ambient environment in the 62 years prior to the specific exposures, that proposition does not appear to be in doubt and was strongly supported by the evidence of each of Mr Rogers and Dr Francis, and was not inconsistent with the evidence of any witness.

72 Nor can I see any basis for the assertion that the proposition advanced by Professor Breslin to the effect that the exposure experienced by Mr Moss in the course of the specific incidents he identified was greater than community background exposure (albeit marginally) is inconsistent with his conclusion that those exposures were not significant in causing or contributing to him contracting mesothelioma. The expert evidence was uniformly to the effect that the risk of contracting mesothelioma is dose related. The proposition that the mesothelioma suffered by Mr Moss is much more likely to have been caused by background exposure (including both ambient environmental exposure and previous specific exposures of which Mr Moss was unaware or had forgotten) is entirely consistent with Professor Breslin's observation that the total exposure experienced by Mr Moss in the course of the four specific incidents he identified was "barely above" background exposure.

73 The trial Judge made the following further observations concerning Professor Breslin's evidence (reasons [360]):

"Professor Breslin's evidence is not sufficient to discharge the evidential burden on the defendant of adducing evidence that the plaintiff's handyman exposure had no effect or that the plaintiff would have suffered mesothelioma even if he had not experienced the handyman exposure. Professor Breslin is not able to say that the asbestos fibre or fibres that caused the plaintiff's mesothelioma were not inhaled by the plaintiff in the course of his handyman activities. Professor Breslin's evidence amounts to no more than that he thinks 'it is more probable than not that [the plaintiff's] mesothelioma is due to either previously unidentified asbestos exposure earlier in his life or to environmental exposures in a predisposed individual'."

This paragraph reveals the errors in the approach taken by the trial Judge to which I have referred in my reasons in the Hannell appeal. It is clear from the terms of this paragraph that the trial Judge has reversed the onus of proof, and approached the case on the basis that Amaca was required to prove that it was not a fibre or fibres inhaled by Mr Moss in the course of the specific incidents of exposure he identified which caused his mesothelioma. Further, it also seems clear that the trial Judge has approached the case on the basis that Amaca was required to discharge that onus at a standard higher than the ordinary civil standard of proof on the balance of probabilities. Professor Breslin's evidence, paraphrased by the trial Judge in terms to the effect that it is more probable than not that the mesothelioma suffered by Mr Moss was caused by things other than exposure in the course of the incidents for which Amaca is said to be responsible, is, if accepted, sufficient to result in the dismissal of Mr Moss' claim. This paragraph therefore reveals an erroneous approach by the trial Judge with respect to both the onus and standard of proof.

"The issue is not whether it is more probable than not that the plaintiff's mesothelioma is due to either previously unidentified asbestos exposure earlier in the plaintiff's life or to environmental exposures in a predisposed individual. The issue I am presently addressing is whether or not Professor Breslin's evidence is evidence that the defendant's breach of duty in exposing the plaintiff to asbestos in the course of his handyman activities had no effect or is evidence that the plaintiff would have contracted mesothelioma in any event. Furthermore, as to Professor Breslin's first alternative cause of the plaintiff's mesothelioma, I have found that the plaintiff has not experienced any specific asbestos exposure other than the handyman and bystander exposures."

With respect, the issue before the Court was precisely that enunciated in the first sentence of that paragraph. The denial by the trial Judge that that was the issue to be considered reveals another error in approach. The second sentence of this paragraph provides further illustration of the erroneous approach taken by the trial Judge with respect to the onus and standard of proof. And the final sentence of the paragraph demonstrates that the trial Judge relied upon his erroneous finding that Mr Moss had not experienced any specific exposures of which he was unaware or had forgotten as another basis for rejecting Professor Breslin's evidence.

75 The trial Judge went on to repeat his earlier assertion that Professor Breslin's evidence to the effect that the exposures experienced by Mr Moss in 1989 and 1990 are barely above background exposure is inconsistent with his conclusion that those exposures were not significant in contributing to the mesothelioma suffered by Mr Moss. For the reasons I have given above, I do not see any inconsistency in those assertions.

76 The trial Judge went on to state (reasons [362]):

"If Professor Breslin means that the cumulative 1989 and 1990 exposures were less than the plaintiff's cumulative lifetime background exposure then I do not accept that finding or assumption."

The trial Judge does not refer to any evidence, nor elucidate any process of reasoning to sustain his rejection of the proposition that the cumulative exposures experienced by Mr Moss in the specific incidents he had identified were less than the cumulative exposure he had experienced in the ambient environment over the 62 years prior to the specific incidents. That proposition is amply supported by the evidence given by each of Mr Rogers and Dr Francis as to the likely levels of exposure in the course of the relatively brief incidents identified by Mr Moss, as compared to the likely level of exposure in the ambient environment. It is not contradicted by any other evidence.

77 For these various reasons in my opinion the trial Judge was wrong to reject the evidence given by Professor Breslin.

78 Professor Richard Fox is an oncologist based at Royal Melbourne Hospital. He has extensive experience in treating mesothelioma and has researched the subject.

79 Professor Fox did not give any evidence relevant to Mr Hannell's claim. The opinions that he had formed in relation to the claim by Mr Moss were contained in a report dated 20 April 2006 which was tendered without objection. In that report Professor Fox set out the assumptions of fact he had made in relation to the specific incidents of exposure identified by Mr Moss. Those assumptions correspond with the findings of fact made by the trial Judge.

80 Professor Fox refers in his report to the geometric relationship between risk and length of latency period. He corroborates the assertions of all experts called in the case to the effect that the earlier the exposure, the greater the likelihood that it caused or contributed to the contraction of mesothelioma. In the view of Professor Fox, exposure 20 years ago has a risk at least eight times higher than exposure 10 years ago, whilst exposure 30 years ago has a risk four times higher than the risk due to exposure 20 years ago. It is to be recalled that the specific exposures identified by Mr Moss occurred approximately 15 years prior to his diagnosis. Professor Fox also expresses the view that because the exposures identified by Mr Moss were "extremely light", and were experienced at a relatively old age, and were at the very lowest end of the acknowledged latency period, "it is extremely unlikely that his exposure in Australia ... was aetiological in terms of his malignant mesothelioma".

81 In cross-examination Professor Fox agreed that all asbestos inhalation increased the risk of mesothelioma, and that each exposure which a person has contributes to the total cumulative dose of fibre inhaled by that person. However, he reiterated in his answers that risk was not purely dependent upon dose level, but was also related to the length of the latency period. Professor Fox also observed that in his experience he had never before encountered a mesothelioma patient who was in his 60s at the time of first exposure.

82 The trial Judge referred to the evidence given by Professor Fox with respect to latency periods, and contrasted that evidence to the evidence of Professor Henderson and Professor Robinson, to the effect that although short latency periods were rare, they were not unknown, and that latency periods as short as 10 or 11 years had been encountered.

83 The trial Judge then observed (reasons [369]):

"I accept the evidence of Professor Henderson and Professor Robinson in relation to latency periods. I do not accept that the relatively short latency period in the plaintiff's case is a sufficient reason for excluding his 1989 and 1990 exposures as having caused or contributed to the development of the plaintiff's mesothelioma."

This assertion misconstrues the evidence given by Professor Fox. That evidence was not to the effect that the short latency period was, in itself, a sufficient reason for excluding the specific exposures as being aetiologically linked to the mesothelioma suffered by Mr Moss. Rather, the evidence of Professor Fox was that the short latency period, coupled with the unusually late age of exposure, and the fact that the specific exposures identified were "extremely brief and light" caused him to conclude that any aetiological connection was "extremely unlikely".

"In forming his opinion Professor Fox also refers to the plaintiff's 1989 and 1990 exposures as being 'extremely light exposure'. The extent or magnitude of the plaintiff's 1989 and 1990 exposures was carefully considered by Professor Musk, Dr Leigh, Professor Henderson and Professor Robinson. Each of them concluded that the 1989 and 1990 exposures were greater than background exposure and were a significant causal contribution to the plaintiff's mesothelioma. I accept their evidence and do not accept that the plaintiff's 1989 and 1990 exposures can be excluded as making a causal contribution to his mesothelioma on the basis that the exposures were too light or brief."

Obviously this paragraph states a conclusion. To the extent that the process of reasoning supporting that conclusion is elucidated, it is to be found in the analysis by the trial Judge of the evidence given by Professor Musk, Dr Leigh, Professor Henderson and Professor Robinson (to which I will now turn). However, before doing so I would observe that there is no inconsistency between the observation that the specific exposures identified by Mr Moss were greater than background exposure, and the description of those exposures as being "extremely light" or "brief".

85 The extent of the observations made by the trial Judge with respect to the evidence given by Professor Musk on the question of the causation of Mr Moss' mesothelioma appears to be contained in the following paragraph (reasons [315]):

"In his report of 21 February 2006 Professor Musk stated his opinion that the cause of the plaintiff's mesothelioma was asbestos exposure 'as described' that is, the plaintiff's handyman and bystander exposure in 1989 and 1990."

86 Despite the fact that the trial Judge has apparently used the evidence of Professor Musk as a basis for rejecting all the expert evidence adduced by Amaca, his reasons provide no analysis or evaluation of the evidence given by Professor Musk on the subject of causation.

87 That evidence, insofar as it related to Mr Moss, was given in the form of two reports, dated 21 February 2006 and 23 April 2006 respectively. The first report sets out the history taken from Mr Moss, including the history of specific exposures. It contains the diagnosis of malignant mesothelioma, and asserts:

"It is my opinion that the cause of your client's mesothelioma was asbestos exposure as described. Although his degree of exposure was small, the exposures would have increased his risk of developing mesothelioma."

Significantly, the report makes no estimate of the extent of the increment in risk.

88 The second report from Professor Musk, dated 23 April 2006, deals only with the question of foreseeability. So, as in the Hannell case, the written reports provided by Professor Musk contain nothing relating to the question of causation of the mesothelioma suffered by Mr Moss, other than the unreasoned assertion that the specific incidents of exposure he had identified were the cause of his mesothelioma.

89 The cross-examination of Professor Musk was evidence in both the Hannell and Moss cases, and has been described by me at [133] - [137] of my reasons in the Hannell appeal, which are adopted. The conclusion that Professor Musk gave no direct testimony on the relevant contributions to risk presented by the specific incidents of exposure as compared to the background risk is equally applicable to Mr Moss. Similarly, the observations I have made at [143] - [145] of my reasons in the Hannell appeal, with respect to the apparent acceptance by the trial Judge of a bare assertion made by Professor Musk without any elucidation of the processes of reasoning adopted, are equally applicable to this case.

90 The reasons of the trial Judge relating to the evidence given by Professor Robinson on the subject of the causation of Mr Moss' mesothelioma appears to be limited to the following (reasons [316]):

"In his written statement ... Professor Robinson referred to the plaintiff's history of asbestos exposure by which he was referring to the plaintiff's handyman and bystander exposure in 1989 and 1990. Professor Robinson said that that exposure is the likely cause of the plaintiff's mesothelioma."

91 The reasons of the trial Judge do not appear to contain any analysis or elucidation of the reasons for acceptance of that assertion.

92 The statement to which the trial Judge referred is set out at [148] of my reasons in the Hannell appeal, which is adopted. Because the evidence given by Professor Robinson in relation to the causation of Mr Moss' mesothelioma was given in conjunction with the evidence given by him in relation to the causation of Mr Hannell's mesothelioma, my analysis of that evidence at [150] - [156] of my reasons in the Hannell appeal is equally applicable to this appeal and is adopted.

93 In short, for the reasons there expressed, in my opinion Professor Robinson's expressed conclusion provides insufficient support for Mr Moss' claim. Further, the trial Judge erred by failing to elucidate the process of reasoning which caused him to accept the assertion made by Professor Robinson.

94 I have set out Professor Henderson's qualifications and experience at [157] of my reasons in the Hannell appeal which is adopted. Professor Henderson's opinions relevant to the claim by Mr Moss are contained in a report dated 17 April 2006 which was tendered in evidence. That report follows precisely the same format, and contains many of the same paragraphs as the report which was tendered in the Hannell case, and which is analysed at [158] - [173] of my reasons in that appeal, which are adopted. Further, the section of his report dealing specifically with the causation of Mr Moss' mesothelioma is identical in terms to that section of his report in the Hannell case, with the result that [168] - [173] of my reasons in that appeal are equally applicable to this case, and are adopted.

95 Professor Henderson goes on to observe that the history provided Mr Moss met each of his essential criteria - namely, the performance of work which would have resulted in some elevation of airborne asbestos fibre concentrations in his breathing zone in excess of background exposure, within the latency period (albeit near the low end of the range).

"Overall, I would assess Mr Moss' cumulative asbestos exposure as near the low end of the range of light exposure, but it was nonetheless exposure that was in excess of any 'background' exposure derived from the 'environment at large' for a control/reference urban or rural population with no identifiable occupation or domestic environmental exposure to asbestos. Therefore, it is my assessment that his exposure was significant for causation of his mesothelioma: it is also my opinion that the details relayed in your letter of 07 April 2006 and in Prof. Musk's report comply with The Helsinki Criteria for the causal attribution of mesothelioma to asbestos, on the basis of the asbestos exposure history alone.

...

Given Mr Moss' development of plural mesothelioma with a relatively short latency interval and only light asbestos exposure (and provided that he did not sustain any exposure to asbestos apart from those exposures recorded in your letter of 07 April), there appears to be a reasonable likelihood that he has an underlying innate/acquired susceptibility to carcinogenesis - specifically mesothelioma induction - by asbestos. Even so, it would be highly unlikely that any such predisposition to the carcinogenicity of asbestos would find expression as mesothelioma, in the absence of the asbestos exposure (in other words, if no exposure, then no mesothelioma, at a good order of probability).

Therefore, it is my assessment at a reasonably good order of confidence and at [a] level of reasonable medical certainty that Mr Moss' cumulative asbestos [sic: exposure] to asbestos - including commercial amphibole asbestos in the form of amosite - made a significant causal contribution towards the development of his mesothelioma: in other words, his light exposure in excess of 'background' exposure would have made a significant causal contribution by way of a contribution on top of and incremental upon any underlying/'background' risk of mesothelioma."

97 It will be noted that these observations bear a close similarity to the tenor of the observations made by Professor Henderson in his report in the Hannell case. Accordingly, the observations I have made at [170] - [175] of my reasons in the Hannell appeal are equally applicable to this appeal, and are adopted.

98 The cross-examination and re-examination of Professor Henderson was evidence in both cases being tried, and the views I have expressed in relation to that cross-examination at [176] - [185] of my reasons in the Hannell appeal are generally applicable to this appeal and are adopted. To the extent that those reasons deal with matters specific to Mr Hannell, the evidence given by Professor Henderson in relation to Mr Moss corresponds with that evidence. For example, Professor Henderson accepted that in the case of Mr Moss, as his symptoms appeared at the age of 78, excluding the last 10 years, he would have had 68 years of environmental exposure, and he may also have had unrecalled or unrecognised specific exposures.

99 However, after the passage of evidence which I have set out at [181] of my reasons in the Hannell appeal, Professor Henderson was asked whether that answer would remain sound in the case of Mr Moss, to which he replied:

"I think so, although my confidence in causal contribution or casual attribution in that case is a little less than it is in the case of Mr Hannell."

100 Accordingly, the conclusions I have expressed in my reasons in the Hannell appeal, to the effect that when Professor Henderson's evidence is considered in its entirety, it is clear that he was taking the view that any increment in risk, however small, is causative, is equally applicable to this appeal.

101 The evidence given by Professor Henderson on the subject of the causation of Mr Moss' mesothelioma are referred to in three paragraphs of the reasons of the trial Judge ([317] - [319]). Those paragraphs summarise the evidence given by Professor Henderson. The reasons of the trial Judge do not disclose any process of analysis of the evidence given, and accordingly the view I have expressed as to the inadequacy of the reasons in that respect, and as to the proper analysis and effect of Professor Henderson's evidence at [186] of my reasons in the Hannell appeal are equally applicable to this case and are adopted. In short, given that Professor Henderson accepted that there was another source of the risk of Mr Moss contracting mesothelioma - namely background risk, it could not be concluded on the balance of probabilities that Mr Moss would not have contracted mesothelioma in any event, irrespective of the specifically identified exposures, unless and until an assessment of the relative magnitudes of the respective risks was undertaken, but Professor Henderson failed to undertake that exercise. Rather, he has approached the question on the basis that any increment in risk, however small, is properly regarded as causative if the risk has eventuated. Evidence given on that basis is incapable of discharging Mr Moss' burden of proof.

102 I have described Dr Leigh's qualifications and experience at [187] of my reasons in the Hannell appeal, which is adopted.

103 The opinions formed by Dr Leigh relevant to the claim by Mr Moss were expressed by him in a report dated 6 April 2006 which was tendered in evidence. That report follows the same format and has, in major part, almost identical text to the report which he provided in respect of Mr Hannell. The only differences appear to be the portions of the report dealing with the specific histories of exposure and in the section dealing with foreseeability, in which there is reference to some additional publications and the focus of foreseeability is on 1989, in the case of Mr Moss, rather than 1983, as in the case of Mr Hannell.

104 The conclusion expressed by Dr Leigh in relation to Mr Moss was expressed in identical terms to the conclusion he expressed in relation to Mr Hannell, save for amendment of the relevant time periods. Thus, Dr Leigh concluded:

"Mr Moss' total cumulative asbestos exposure during the period 1989-1990, was greater than background exposure from the environment at large (the background exposure would be included in the total exposure) and Mr Moss' exposure to asbestos in 1989-1990 made a material contribution to causation of his mesothelioma." (see the reasons in the Hannell appeal at [195])

105 The oral evidence given by Dr Leigh was evidence in both cases, and was equally applicable to both cases. Between the first and second questions which I have set out in [199] of my reasons in the Hannell appeal, Dr Leigh was asked:

"And the comment that you've just made remains solid and sound in the Moss case as well as the Hannell case?---Yes."

106 It follows that the observations I have made at [189] - [205] in my reasons in the Hannell appeal apply equally to this appeal, and are adopted.

107 The observations made by the trial Judge with respect to the evidence given by Dr Leigh on the subject of the causation of Mr Moss' mesothelioma are limited to the following paragraph (reasons [320]):

"In his report of 6 April 2006 Dr Leigh said that the plaintiff's total cumulative asbestos exposure during the period 1989 - 1990 was greater than background exposure from the environment at large and the plaintiff's exposure to asbestos in 1989 - 1990 made a material contribution to causation of his mesothelioma."

108 Accordingly, as with the other experts called by Mr Moss on the subject of specific causation, in his reasons the trial Judge has gone no further than to repeat the conclusions at which Dr Leigh arrived. No process of analysis or reasoning leading to the acceptance of those conclusions is enunciated in the reasons for decision. Going back to [370] of the reasons for decision of the trial Judge, in which he expressed a preference for the opinions of those witnesses as against that expressed by Professor Fox, when regard is had to the reasons as a whole, no elucidation of the process of analysis or evaluation of the competing evidence has been provided.

109 The conclusion which I drew in relation to the evidence of Dr Leigh and which I have expressed in my reasons in the Hannell appeal is equally applicable to this appeal. That conclusion is to the effect that Dr Leigh's opinion that Mr Moss' specifically identified exposures "made a material contribution to causation of his mesothelioma" derives from an approach in which every increment in risk, however small, is taken to be causative if the risk has come home. Dr Leigh has made no attempt to estimate or quantify the respective contributions to the risk of Mr Moss contracting mesothelioma made by his specifically identified exposures on the one hand, and the background risk on the other. He has suggested that industrial hygienists, such as Mr Rogers and Dr Francis, should be consulted for the purposes of making that estimate. As I have pointed out, if regard is had to their evidence, it leads to the conclusion that the respective contribution to risk made by Mr Moss' specifically identified exposures is slight. Dr Leigh's evidence is not, of itself, capable of discharging Mr Moss' burden of proof.

Summary of the expert evidence on causation

110 It follows from this analysis of the expert evidence given in relation to the claim by Mr Moss, that the summary of that evidence which I have expressed at [214] - [223] of my reasons in the Hannell appeal is equally applicable to this appeal and is adopted save for the references to Mr Alvarez, who did not give evidence in this case. While there are of course differences between the facts of the two cases, and in particular, in the degree of exposure, the expert evidence was uniformly to the effect that the specific exposures identified by Mr Moss would have caused much less exposure to respirable asbestos fibre than those identified by Mr Hannell. Accordingly, the conclusions at which I have arrived in relation to Mr Hannell's claim, apply with even greater force to the claim of Mr Moss.

111 Accordingly, for the reasons I have enunciated in more detail in the Hannell appeal, the trial Judge should have found that Mr Moss had failed to establish that the specific exposures he had identified caused or contributed to his mesothelioma.

112 This conclusion is sufficient to dispose of this appeal. However, I will deal with the other issues that were ventilated on appeal, although in rather less detail.

Causation - failure to warn by signage on the products and advertising

113 The views I have expressed with respect to the consequences of failure to breach an alleged duty owed to Mr Moss by failing to affix warning labels on product manufactured by Amaca at [225] - [228] of my reasons in the Hannell appeal are equally applicable to this case. In short, for those reasons, because all relevant products were installed in the late 1970s or early 1980s, and because of the nature of those products, the evidence did not enable the trial Judge to conclude that affixation of warning labels would have had any effect in preventing or discouraging Mr Moss from undertaking the activities which he undertook in relation to those products in 1989 and 1990.

114 In relation to the alleged breach of duty with respect to the placement of warning advertisements, the trial Judge made a finding in precisely the same terms as the finding which I have set out at [233] of my reasons in the Hannell appeal. However, the evidence given by Mr Moss does not sustain the conclusion that the placement of advertisements in a daily or weekly newspaper monthly or more frequently saying that a handyman user of asbestos cement building products ran a risk of contracting mesothelioma would have discouraged Mr Moss from dealing with the asbestos products in the way in which he did.

115 In this regard it is significant that Mr Moss gave evidence to the effect that he was totally unaware of any risks or hazards associated with asbestos until he was diagnosed with mesothelioma within the last couple of years. That ignorance of the hazards associated with asbestos persisted despite the extensive public attention which has been directed to those hazards over the last 15 or 20 years.

116 Mr Moss also gave evidence to the effect that he stopped getting a daily newspaper back when he was in the United Kingdom and had never had a newspaper delivered when in Australia. His evidence was that he would buy The West Australian or The Sunday Times or The Australian very occasionally. His purpose in picking up a newspaper from a newsagent was to read sporting news or the front few pages, or to get the television papers. In cross-examination he was taken to a number of the published articles relating to the hazards of asbestos. His evidence was that even if they had been in a newspaper which he had purchased he would not have paid any attention to them. His evidence was also to the effect that he would not have paid any attention to any published material relating to handyman matters because he had never been interested in any way with do it yourself work.

117 Given that Mr Moss had remained impervious to knowledge of any risk whatsoever associated with asbestos until such time as he was diagnosed with mesothelioma, within the last two years or so, notwithstanding the extensive publicity directed to those hazards in the years prior to that diagnosis, and given the other evidence to which I have referred, the only conclusion reasonably open on the evidence is to the effect that public announcements or advertisements of the kind which it was asserted Amaca had a duty to publish would not have made any difference whatsoever to the activities undertaken by Mr Moss in relation to Amaca's products. This is another reason why the trial Judge was wrong to conclude that Amaca's alleged breaches of duty caused or materially contributed to the mesothelioma suffered by Mr Moss.

118 The other issues ventilated in the course of this appeal concern the issues related to the foreseeability of harm.

119 Much of the evidence led on that subject was identical to the evidence led in the Hannell case, and which I have considered at [236] - [239] of my reasons in that case, which are adopted. There are only two material differences between the issues which arise in relation to foreseeability between Mr Moss' case and Mr Hannell's case. The first arises from the different times at which each experienced their first identified specific exposure. In the case of Mr Hannell, his first identified specific exposure was in 1983, whereas in the case of Mr Moss it was in 1989. However, because Mr Hannell's specific exposures continued until 1990, evidence was given in his case which was relevant to the state of knowledge right up until 1990, and there is therefore little, if any, material difference between the evidence which I have canvassed in my reasons in the Hannell appeal and the evidence adduced in Mr Moss' case.

120 The second material difference arises from the distinction drawn by the trial Judge between exposures which he categorised as "handyman exposures" and exposures which he categorised as "bystander exposure". For reasons which he developed, he came to the conclusion that Amaca owed a duty of care to warn against handyman exposures, but no duty to warn against bystander exposures (at least not in 1989 - 1990).

121 Because, for the reasons I have given in the Hannell appeal, in my opinion, the trial Judge was wrong to conclude that it was reasonably foreseeable to a person in Amaca's position that an occasional and casual user of asbestos cement building products would suffer mesothelioma or other lung disease as a result of undertaking casual work on those products, it is unnecessary for me to deal with the distinction drawn by the trial Judge between handyman exposure and bystander exposure, given that his Honour's conclusion in relation to bystander exposure corresponds with my own.

122 However, it does seem to me that the distinction drawn by his Honour between those two forms of exposure lacks a logical basis. The exposure which increases the risk of contracting mesothelioma or other serious lung disease is exposure to respirable asbestos fibre. That exposure will occur whenever respirable fibre is present in the breathing zone of the relevant person. As a matter of logic, it would seem that fibre can just as easily be present in the breathing zone of a person who is closely observing, but not themselves carrying out work on an asbestos cement product, as in the case of a person who is himself carrying out that work.

123 On the basis of the expert evidence adduced, for the purposes of identifying the foreseeability of harm, in my opinion the relevant distinction is between sustained and repeated exposure to significant

quantities of respirable fibre, of a kind likely to be experienced in an occupational environment on the one hand, and occasional and brief exposure to lower levels of fibre, of a kind likely to be experienced in a non-occupational environment on the other. However, in the circumstances of this particular case, for the reasons I have given, it is unnecessary to pursue the further consideration of the appropriate levels of distinction between categories of exposure.

124 For these reasons, augmented by the reasons I have given in the appeal in the Hannell case, to the extent that they are incorporated herein, in my opinion Amaca's appeal should be allowed and Mr Moss' judgment set aside. Judgment should be entered in favour of Amaca, dismissing Mr Moss' claim.

125 STEYTLER P & McLURE JA: We agree with the Chief Justice that the appeal should be allowed but for different reasons. The facts are detailed in the reasons for judgment of the Chief Justice and not repeated here.

126 The issues in this appeal largely overlap with those in Amaca Pty Ltd v Hannell [2007] WASCA 158. The relevant factual variations are that the specific exposures relied on by Mr Moss commenced in 1989, some six years after Mr Hannell's first specific exposure, involved what the trial Judge described as "bystander" exposure as well as handyman exposure and involved significantly smaller quantities of asbestos fibres.

127 We agree with the Chief Justice for the reasons he gives that there is no rational basis for distinguishing between bystander exposure and handyman exposure. The relevant common feature of both is the infrequent, intermittent occasions of specific exposure to asbestos fibres. The duty of care owed to Mr Moss is as a member of the class of persons who occasionally, intermittently or from time to time are exposed to asbestos dust from the cutting, sawing, sanding or drilling of the appellant's asbestos cement products. Our analysis and conclusions on foreseeability, duty and breach in relation to Mr Hannell's case are equally applicable to Mr Moss. We concluded that there was no breach of duty.

128 Further, the factual variation relating to the dose of asbestos is significant. Mr Rogers estimated that the total cumulative exposure experienced by Mr Moss in the four incidents was 0.00043 fibres per ml years or less. Dr Francis estimated Mr Moss' total cumulative asbestos exposure at 0.02 fibres per ml years. Using Dr Francis' figure, Professor

Berry calculated the relative risk at between 1.004 and 1.006. That is a particularly low level of asbestos exposure, absolutely and by comparison with the level of background exposure. When that is considered together with the fact that the specific exposures occurred when Mr Moss was relatively old and were at the very lowest end of the latency period, the weight of the evidence supports a finding that the specific exposures did not make a material contribution to the contraction of mesothelioma. For the reasons given in Mr Hannell's case, the trial Judge erred in his application of the causation test in Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408 by requiring the appellant to exclude any possibility that the specific exposures caused or contribute to the disease.

129 We would allow the appeal, uphold the notice of contention, set aside the orders made by the trial Judge and order that the action be dismissed. We would hear from the parties as to costs.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) -v- MOSS [2007] WASCA 162 (S)

BETWEEN : AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) (ACN 000 035 512)

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : MOSS -v- AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) [2006] WASC 311

Costs - Whether the issues on appeal justify departure from the general rule that the successful party should recover its costs - Turns on own facts

Respondent pay the appellant's cost of the trial and appeal, to be taxed

1 JUDGMENT OF THE COURT: By orders made on 2 August 2007, the Court allowed this appeal, set aside the judgment of the trial judge and instead ordered that the respondent's action against the appellant be dismissed. Directions were made for the exchange of written submissions in relation to the costs of the trial and the appeal. These reasons are concerned only with those costs issues.

2 The appellant submits that the general rule, reflected in O 66 r 1(1) of the Rules of the Supreme Court 1971 (WA) is that 'the Court will generally order that the successful party to an action or matter recover his costs' (O 66 r 1). It submits that in this case, there is no basis for departing from that general rule.

3 The respondent acknowledges the existence of the general rule, but relies upon the modification to that general rule established by practice and authority, and expressly recognised in O 66 r 1(3), which provides:

Where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs the Court may order such party to pay the costs of such issue or issues.

4 The respondent submits that the issues that arose at trial, and on appeal, can be segregated into four substantive and discrete areas, namely:

5 The respondent points out that on the decision of the majority in this Court, it was successful in all of those issues other than breach and causation. The respondent submits that, as a result of its success on two out of the four issues identified, the appropriate orders to be made in respect of costs are:

(a) that each party bear their own costs of the trial and the appeal; or in the alternative

(b) that the respondent pay 25% of the appellant's costs of the trial and the appeal.

6 The power to depart from the general rule to the effect that costs follows the event and to instead adjust the costs order to be made by reference to the failure of the generally successful party on specific and particular issues within the litigation, is recognised by practice, authority and the express provisions of O 66 r 1(3). However, its application depends upon the identification of discrete and severable issues, the litigation of which has increased the costs of conducting the proceedings. Established practice in this State, and the authorities, suggest that the exercise of this power should be approached broadly, and as a matter of impression, and without an attempt at 'mathematical precision' which is likely to prove illusory - see, for example J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 2) [1993] FCA 42; (1993) 46 IR 301.

7 Accordingly, the power to adjust an order for costs by reference to particular issues upon which the generally successful party has failed, is properly exercised only where there are discrete and severable issues upon which the generally successful party has failed, and which have added to the cost of the proceedings in a significant and readily discernible way. In a case in which the generally successful party has failed on only a minor issue, which did not add materially to the cost of the conduct of the proceedings, it would not ordinarily be appropriate to depart from the general rule, unless the conduct of the generally successful party in relation to that issue had been unreasonable. In the event of unreasonableness, different considerations may apply.

8 Applying those principles to the circumstances of this case, it is undoubtedly the case that the four issues identified by the respondents arose for determination both at trial and on appeal. However, the factual and evidentiary substratum to each of those issues was substantially common to all issues, and was largely addressed by each of the experts who were called by each of the parties. At the heart of each of the issues was the question of the extent to which the inhalation of respirable asbestos fibre in the course of what were characterised as 'home handyman activities' performed infrequently on materials containing asbestos fibre, caused or contributed to the risk of each of the respondents contracting mesothelioma. That issue, and particularly the state of knowledge in relation to that issue, bore directly upon the issues of foreseeability, and duty of care, and also upon the question of whether the appellant was in breach of the duty of care which the majority found it owed to each respondent. The issue was central to the question of causation. So, although this is a case in which the legal consequences of the basic factual and evidentiary substratum had to be enunciated in the resolution of different questions, it was also one in which there was some overlap between the basic factual and evidentiary substratum in respect of each of those questions.

9 Applying those considerations to the issue of the costs of the trial, because the major part of the time spent at trial was concerned with evidence which spanned all four identified issues, and because it seems to us that it was reasonable for the appellant to put the respondent to the proof of all of the issues necessary to establish their cause of action, there should be no departure from the general rule, and the respondent should be ordered to pay the appellant's costs of the trial to be taxed.

10 In relation to the costs of the appeal, unlike the case of Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109, which was heard simultaneously with this appeal, the appellant succeeded on the question of causation. The argument directed specifically to the issues of foreseeability and duty of care, upon which the respondent succeeded, was not severable and discrete from the issues upon which the respondent failed, and did not substantially increase the cost of conducting the appeal. Accordingly, the general rule should be applied, and the respondent ordered to pay the appellant's costs of the appeal to be taxed.

11 So the orders of the Court will be that the respondent pay the appellant's costs of the trial and the appeal, to be taxed.

AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) -v- MOSS [2007] WASCA 162 (2 August 2007)

At a glance

Court

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Judgment (188 paragraphs)

AMACA PTY LTD (Formerly James Hardie & Co Pty Ltd) -v- MOSS [2007] WASCA 162 (2 August 2007)

Cases Cited (5)