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[1996] QCA 288
Court of Appeal (Qld)
1996-08-23
Before Fitzgerald P, McPherson J, Helman J, Fitzgerald P
Original judgment source is linked above.
For the reasons given by Helman J., I agree that the appeal should be dismissed.
At the time when Mrs Bale was exposed to the asbestos dust carried home on her husband's clothes and his person, the state of medical and general knowledge in the community was such that the defendant could not reasonably have foreseen that she might contract the disease. There was consequently no reason for the defendant to have taken precautions against the possibility that she might suffer injury from that source.
Mrs Bale has appealed against the dismissal, on 14 December 1995, of her action for damages for negligence against the respondent, her husband's former employer. Mr Bale was employed by the respondent, previously called Wunderlich Limited, from 1 June 1962 to 30 August 1965 at its asbestos works at Gaythorne, Brisbane. In February 1995 the appellant was found to have malignant pleural mesothelioma and in consequence a very short life expectancy. Her case against the respondent was that asbestos dust brought home from the asbestos works by Mr Bale on his clothes and in the utility truck in which he went to and from work and then breathed in by her caused her illness, that the respondent owed her a duty of care, and that the respondent failed in its duty.
At the beginning of the trial the parties told the learned trial judge that they had agreed on the quantum of the appellant's damages at $94,916.10, leaving her Honour to decide whether the respondent was liable to the appellant.
The appellant and Mr Bale were married in 1957 and have lived together ever since. Mr Bale has had other jobs before and after he worked for the respondent but none in which he was exposed to asbestos dust. The appellant's only exposure to asbestos dust - apart from an insignificant incident over twenty years ago when she helped her husband cut and nail fibro sheeting when renovating their house - was in the period when Mr Bale worked at the asbestos works. Her Honour was satisfied that the dust breathed in by the appellant when Mr Bale came home from work with dust on his clothes and body, when she shook out and laundered his work clothes, and when she cleaned and travelled in his truck caused her illness. No issue was taken before us about that finding.
The central matter in issue on the appeal was her Honour's finding that, at the time when Mr Bale was employed by the respondent, it was not reasonably foreseeable that a person in the position of the appellant would sustain personal injury of any kind as a consequence of being exposed to asbestos dust to the extent that she was.
There was much evidence about the knowledge scientists had gained in this century about the damage that the breathing of asbestos dust can do to the human body. Knowledge on this subject increased greatly as time went on. At first scientific interest concentrated, understandably, on the effect on those most exposed to the dust: the workers in the asbestos industry. Gradually, however, it began to be understood that other people, who were not exposed to such large quantities of the dust as workers were, could also be affected. The evolution of scientific interest in and investigation of the effect of asbestos dust was then not unlike the evolution of concern about tobacco smoking from the effect on smokers to the effect on those who inhale the smoke exhaled by others.
Having considered the evidence as to the progress of scientific knowledge about the effect of breathing asbestos dust, her Honour found that until publication towards the middle of 1965 of a paper by Muriel L. Newhouse and Hilda Thompson entitled "Mesothelioma of Pleura and Peritoneum Following Exposure to Asbestos in the London Area" in the British Journal of Industrial Medicine (22,261) "there was no published material which identified dosages as low as that inhaled by Mrs Bale with the contraction of harmful disease".
The authors of the paper, which was received by the journal for publication on 11 February 1965, were attached to the Department of Occupational Health and Applied Physiology in the London School of Hygiene and Tropical Medicine. A series of eighty-three patients from the London Hospital with a diagnosis of mesothelioma confirmed by necropsy or biopsy had been studied for possible exposure to asbestos. There were forty-one men and forty-two women. Twenty-seven of the patients had peritoneal and fifty-six pleural tumours. The earliest death recorded was in 1917, but only ten of the series died before 1950, and forty (forty-eight per cent.) between 1960 and 1964. The study revealed that nine of the patients were people whose relatives worked with asbestos. The authors recorded what they found in those cases of domestic exposure as follows:
Domestic Exposures.--The group of nine, seven women and two men, whose relatives worked with asbestos, are of particular interest. The most usual history was that of the wife who washed her husband's dungarees or work clothes. In one instance a relative said that the husband, a docker, came home ´white with asbestos' every evening for three or four years and his wife brushed him down. The two men in this group, when boys of 8 or 9 years old, had sisters who were working at an asbestos factory. One of these girls worked as a spinner from 1925 to 1936. In 1946 she died of asbestosis. The press report of the inquest states: ´She used to return home from work with dust on her clothes'. Her brother had apparently no other exposure to asbestos; he started work as a shop assistant, then became a sawyer of iron girders until 1948 when he worked as a loader of groceries in the docks for five years (but never on dusty cargoes) and then returned to sawing iron girders. He died in 1956 of a pleural mesothelioma. (p.264)
There seems little doubt that the risk of mesothelioma may arise from both occupational and domestic exposures to asbestos. Wagner and other (1960) described patients with no exposure other than living as a child in the vicinity of the asbestos mines. A high incidence of asbestos plaques of the pleura has been found in the population living near an anthophyllite mine in Finland (Kiviluoto, 1960). More evidence is required of an increased risk to the population living in the neighbourhood of asbestos factories or other areas, such as dockyards, where asbestos is used in quantity. (p.266)
A number of experts gave evidence before her Honour. Two of them were of particular importance: Dr Emanuel Rathus, who was the Queensland Director of Industrial Medicine from 1957 to 1982, who was called by the appellant, and Professor Emeritus David Ferguson, consultant occupational physician, who was called by the respondent.
Dr Rathus, who before coming to Queensland in 1952 had been a specialist in chest diseases in South Africa, first visited the respondent's works in May 1957, and after that at least once a year when he was Director of Industrial Medicine, probably twice a year in the early years. In the same years he visited other Queensland asbestos works with the same frequency.
Her Honour found that Dr Rathus had been and continued to be an enthusiastic and vigorous proponent for occupational health and safety, that asbestos and lead were his chief concerns in his early years in Queensland, that he had made recommendations concerning improvement in practices at asbestos works in Queensland, and that he had from time to time expressed satisfaction with the way in which his recommendations had been implemented. Her Honour recorded that Dr Rathus would bring visiting health experts and medical students to the respondent's works in Brisbane to show them how an efficient modern factory could handle such a dangerous substance with safety. He read widely and kept up with the progress of scientific knowledge in his field. Her Honour thought it "unlikely that he made the link between exposure to low levels of asbestos dust and the contraction of some kind of disease be it mesothelioma or anything else until after the circulation of the Newhouse and Thompson article towards the end of 1965" and did not bring those problems to the attention of Mr Warner Johanssen, a works manager employed by the respondent, until about June 1967.
Dr Ferguson had been closely concerned with thoracic medicine and occupational health for many years. From 1961 to 1965 he was Senior Medical Officer in the Occupational Health Section of the School of Public Health and Tropical Medicine in the University of Sydney. His evidence was that it was not until the publication of the Newhouse and Thompson paper that research and academic workers in the field became strongly conscious of the risk of mesothelioma from exposure to relatively small doses of asbestos and that the data in that paper took several years to reach medical practitioners in the field.
Her Honour thought it "of significance" that neither Dr Rathus nor Dr Ferguson, who had read the scientific literature, "made the links sufficient to foresee the risk of harm from such low dose exposure [as that inhaled by the appellant]".
Had Mrs Bale been successful in establishing that physical injury to a class of persons of which she was one might reasonably have been foreseen as a possible consequence of the respondent's acts or omissions, there could be little doubt that the requirement of proximity as it has been explained in a number of decisions of the High Court would have been satisfied: see e.g. Jaensch v. Coffey [1984] HCA 52; (1984) 155 C.L.R. 549, at pp. 584-585; Gala v. Preston [1991] HCA 18; (1991) 172 C.L.R. 243, at p.253; and Nagle v. Rottnest Island Authority [1993] HCA 76; (1993) 177 C.L.R. 423, at p.430. But her Honour concluded on the evidence before her - and in my view correctly - that at the relevant time that consequence was, having regard to the state of scientific knowledge on the subject, not reasonably foreseeable. It was not far off being so because the connexion was on the point of being revealed to the scientific world by Newhouse and Thompson, and through it to the industry and public health officials. It was regrettably too late for the appellant's well-being and too late for her to succeed on the issue in her action. It is true there had been suggestions in the scientific papers about the connexion - most importantly in a paper by J.C. Wagner, C.A. Sleggs, and P. Marchand, "Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province" (1960) in the British Journal of Industrial Medicine 17,260 - and there had been hints in letters to a learned journal - those of Dr W.J. Smither, Chairman of the Asbestos Research Council, J.C. Gilson, and J.C. Wagner in the British Medical Journal of 3 November 1962 (p.1194), and W.T.E. McCaughley, O.L. Wade, and P.C. Elmes in the same journal of 24 November 1962 (p.1397) - but not enough to establish a proper foundation for the appellant's case.
Her Honour's decision on the appellant's claim was based, as I have related, on her assessment of the appellant's exposure to asbestos dust as low. Mr Stenson argued for the appellant that her Honour erred in making that finding. I see no merit in that submission. The distinction between the prolonged and intense exposure of workers in asbestos works and the brief and less intense exposure of family members of workers is necessarily imprecise in the absence of measurement, but nonetheless valid and supported by the weight of evidence.
I therefore think that no error has been shown in her Honour's decision and that the appeal should be dismissed with costs.
[1] See, for example, Jaensch v. Coffey [1984] HCA 52; (1984) 155 C.L.R. 549, 583-586; Bennett v. Minister for Community Welfare [1992] HCA 27; (1992) 176 C.L.R. 408; Medlin v. State Government Insurance Commission [1995] HCA 5; (1995) 127 A.L.R. 180, 183.
[2] Contrast Qantas Airways Ltd v. Cameron (Full Federal Court, NG521 of 1995, unreported, 17 May 1996).
[3] "It is clear that the question whether a reasonable person would take steps to avoid a foreseeable risk of injury to another is to be answered by balancing `the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities' which may exist": Miletic v. Capital Territory Health Commission [1995] HCA 13; (1995) 130 A.L.R. 591, 594, citing Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 C.L.R. 40 at 47-48 per Mason J. See also Jaensch at pp. 585-586 per Deane J.
[4] Earlier, her Honour had said that "... apart from the introduction of the wet process in 1961 very little was done by [the respondent] in the area of worker health and safety."
[5] Carl Warner Johanssen, the manager of the respondent's factory at which the appellant's husband was employed. Part of her Honour's fndings in relation to Mr Johanssen's evidence was as follows:
"He said that no literature relating to the hazards of asbestos were ever directed to him from head office in Sydney. He himself had access to some articles in medical journals including the British Medical Journal and it was likely that he may have referred them to head office. He recalled that a very few articles referred to asbestos related diseases but that he had never heard of mesothelioma in 1962 or the immediately following years. Mr Johanssen said that he certainly picked up articles on asbestosis in the 1950's and was aware of its dangers. ... He gave no evidence about what safety practices were instituted in the [respondent's] factory ..., for example, monitoring dust levels or, indeed, whether any process of review of the system from the perspective of the health of the workers or the surrounding community was ever undertaken. ..."
[6] Dealing with the answers to interrogatories, the trial judge said:
"... the [respondent's] answers to interrogatories were sworn by a director of the [respondent] in Sydney who had no personal knowledge of any of the matters the subject of the interrogatories. He swore that he based his answers on enquiries made by him of present and former officers, servants and agents of the defendant and of a review of such records of the defendant as remained in its possession, custody or power. He was unable to say whether the management of [the respondent] at [the factory where the appellant's husband worked] in the period 1962-65 had access to any expert or professional journals or periodicals relating to the danger to health of asbestos fibres or whether any regular tests to ascertain the level of airborne asbestos fibres were carried out or as to whether the ... factory was orally advised by Dr Rathus that it should set up its own laundry facilities to launder the outer working clothes of its employees or prevent the employees leaving the factory with dusty outer clothing."
[7] The Factories & Shops Act 1900 contained a general provision requiring adequate ventilation.
[8] The trial judge said that Mr Johanssen "could not recall Dr Rathus suggesting that overalls or a change of clothing be provided for the men during the period in question. He said that there were showers which were provided at the factory because it was a requirement of the Factories and Shops Act. No direction in the period 1962 to 1965 was ever given that men who were dusty should shower before leaving the premises."
[9] That paper included the following passages:
"A series of 83 patients from the London Hospital with a diagnosis of mesothelioma confirmed by necropsy or biopsy has been studied for possible exposure to asbestos. The series consisted of 41 men and 42 women; 27 of the patients had peritoneal and 56 pleural tumours. The earliest death recorded was in 1917, but only 10 of the series died before 1950 and 40 (48%) between 1960 and 1064.
In 76 of the series full occupational and residential histories were obtained. Forty (52.6%) gave a history of occupational or domestic (living in the same house as an asbestos worker) exposure to asbestos compared with nine (11.8%) out of 76 patients from the same hospital suffering from other diseases (P < 0.001). None of the 17 suspected cases of mesothelioma, rejected on pathological grounds, was found to have had any exposure to asbestos. There was also evidence that neighbourhood exposures may be important. Among those with no evidence of occupational or domestic exposures, 30.6% of the mesothelioma patients and 7.6% of the in-patients with other diseases lived within half a mile of an asbestos factory (P < 0.01). Out of the 31 patients with occupational exposures only 10 were in jobs scheduled under the Asbestos Regulations of 1931. The interval between first exposure and the development of the terminal illness of mesothelioma ranged between 16 and 55 years.
The aim of this study has been to establish the occupational histories of these patients and to trace any other possible exposure to asbestos. ...
Domestic Exposures - The group of nine, seven women and two men, whose relatives worked with asbestos, are of particular interest. The most usual history was that of the wife who washed her husband's dungarees or work clothes. In one instance a relative said that the husband, a docker, came home `white with asbestos' every evening for three or four years and his wife brushed him down. The two men in this group, when boys of 8 or 9 years old, had sister who were working at an asbestos factory. One of these girls worked as a spinner from 1925 to 1936. In 1946 she died of asbestosis. The press report of the inquest states: `She used to return home from work with dust on her clothes'. Her brother had apparently no other exposure to asbestos; he started work as a shop assistant, then became a sawyer of iron girders until 1948 when he worked as loader of groceries in the docks for five years (but never on dusty cargoes) and then returned to sawing iron girders. He died in 1956 of a pleural mesothelioma.
Neighbourhood Exposures of Mesothelioma and In-patient Series - The 36 patients with mesothelioma and the 67 patients in the `in-patient' series, who had neither an occupational exposure nor a relative living in the home working with asbestos, might have been exposed to asbestos dust because they lived in the immediate vicinity of an asbestos factory.
There seems little doubt that the risk of mesothelioma may arise from both occupational and domestic exposures to asbestos. Wagner and others (1960) described patients with no exposure other than living as a child in the vicinity of the asbestos mines. A high incidence of asbestos plaques of the pleura has been found in the population living near an anthophyllite mine in Finland (Kiviluoto, 1960). More evidence is required of an increased risk to the population living in the neighbourhood of asbestos factories or other areas, such as dockyards, where asbestos is used in quantity."
[10] Basden's analysis of the "literature" led to the following opinion:
"... commencing with the 1959 papers of Wagner and Sleggs at the Johannesburg Conference and concluding (for the time period of concern) with the paper by Newhouse and Thompson in 1965 (... although Newhouse and Thompson presented the same information verbally at the New York Academy of Sciences Conference in October 1964), the information was being disseminated that `bystander' exposures to fugitive asbestos fibres, including those transported to the receptor zones on contaminated work clothing, were causing mesotheliomas among such bystanders including housewives who washed their husbands' work clothes."
[11] The Council of the Shire of Wyong v. Shirt at pp. 44ff; Jaensch; San Sebastian Pty Ltd v. Minister Administering the Environment Planning and Assessment Act 1979 (N.S.W.) [1986] HCA 68; (1986) 162 C.L.R. 340; Cook v. Cook [1986] HCA 73; (1986) 162 C.L.R. 376; Gala v. Preston [1991] HCA 18; (1991) 172 C.L.R. 243, at p. 253; and Nagle v. Rottnest Island Authority [1993] HCA 76; (1993) 177 C.L.R. 423, at p. 430; Burnie Port Authority v. General Jones Pty Ltd [1994] HCA 13; (1994) 179 C.L.R. 520, 543; Bryan v. Maloney (1995) 182 C.L.R. 609, 617. As was pointed out by Gibbs C.J. in Jaensch at p. 553, the relevance of foreseeability is not limited to the question whether or not a duty of care existed; questions of duty of care, causation and remoteness sometimes converge and are interdependent: Nader v. Urban Transit Authority of New South Wales (1985) 2 N.S.W.L.R. 501, 506; Mounsey v. Orange Grove Bricks Pty Ltd (W.A. Full Court, 185 of 1994, unreported, 29/2/96).
[12] See also Burnie Port Authority at p. 556.
[13] See also at pp. 611-612 per Lord Macmillan.
[14] See also, for example, Faulkner v. Wischer & Co. Pty Ltd [1918] ArgusLawRp 76; (1918) V.L.R. 513; Adelaide Chemical & Fertilizer Company Limited v. Carlyle [1940] HCA 44; (1940) 64 C.L.R. 514; Swinton v. The China Mutual Steam Navigation Co. Ltd [1951] HCA 54; (1951) 83 C.L.R. 553.
[15] See, for example, Scanlon v. American Cigarette Company (Overseas) Pty Ltd [No. 2] [1987] VicRp 23; [1987] V.R. 281; Thompson v. Johnson & Johnson Pty Ltd [1991] VicRp 84; [1991] 2 V.R. 449
[16] See, for example, McLean v. Tedman [1984] HCA 60; (1984) 155 C.L.R. 306; Seltsam Ltd. v. Minahan; Manufacturers Mutual Insurance Ltd. v. Minahan (N.S.W. Court of Appeal, 40394 and 40380 of 1993, unreported, 20 March 1996).
[17] For example, H. v. The Royal Alexandra Hospital for Children [1990] Aust. Torts Reports 67,503.
Bale
Seltsam P/L [1996] QCA 288
Apart from the doctrine of Rylands v. Fletcher ([1866] [1865] EngR 436; L.R. 1 Ex. 265; [1868] L.R. 3 H.L. 330), and the possibility left open by the Privy Council in Overseas Tankship (U.K..) Ltd v. The Miller Steamship Co Pty [1966] UKPC 1; [1967] 1 A.C. 617, 639F that fault might not always be essential to liability for nuisance,[12] the common law has consistently rejected any notion of strict or absolute tortious liability for unintentional injury: see, for example, Read v. J. Lyons & Co. Ltd [1946] UKHL 2; [1947] A.C. 156, 172-173 per Lord Macmillan; Stevens v. Brodribb Sawmilling Co. Pty Ltd [1986] HCA 1; (1986) 160 C.L.R. 16, at p. 30 per Mason J., p. 42 per Wilson and Dawson JJ. However, the significance attached to dangerous activities or products was recognised in Lord Atkin's seminal judgment in Donoghue v. Stevenson [1932] A.C. 562.[13] At p. 596, his Lordship said that the following passage from Dominion Natural Gas Co. Ltd v. Collins and Perkins [1909] A.C. 640, 646 "exactly sums up the position":
Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasized in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur [See, e.g., Thompson v. Bankstown Corporation (1953) 87 C.L.R., at p. 645; Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 C.L.R. 40, at pp. 47-48]. Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v. Fletcher is involved, the standard of care remains `that which is reasonable in the circumstances, `that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances' [Adelaide Chemical & Fertilizer Co. Ltd. v. Carlyle [1940] HCA 44; (1940) 64 C.L.R. 514, at p. 523]. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of `reasonable care' may involve `a degree of diligence so stringent as to amount practically to a guarantee of safety' [Donoghue v. Stevenson [1932] A.C., at p. 612, per Lord Macmillan; Adelaide Chemical & Fertilizer Co. Ltd. v. Carlyle (1940) 64 C.L.R., at p. 523, per Starke J.; and, generally, Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 C.L.R., at pp. 30, 42]."
"As was pointed out in the recent majority judgment in Burnie Port Authority v. General Jones Pty. Ltd. [(1994) [1994] HCA 13; 179 C.L.R. 520, at p. 543, per Mason C.J., Deane, Dawson, Toohey and Gaudron JJ.; and see also Stevens v. Brodribb Sawmilling Co. Pty. Ltd. [1986] HCA 1; (1986) 160 C.L.R. 16, at p. 53], the overriding requirement of a relationship of proximity represents the conceptual determinant and the unifying theme of the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable risk of injury to another. There is no decision of the Court which directly determines the question whether the relationship between Mr. Bryan, as the builder of the house, and Mrs. Maloney, as a subsequent owner of it, possessed the requisite degree of proximity to give rise to a duty, on the part of Mr. Bryan, to take reasonable care to avoid the kind of economic loss sustained by Mrs. Maloney. Necessarily, as has been indicated, the resolution of that question requires the articulation of both the factual components of the relevant category of relationship and the identification of any applicable policy considerations. Ultimately, however, it is a question of law which must be resolved by the ordinary processes of legal reasoning in the context of the existence or absence of the requisite element of proximity in comparable relationships or with respect to comparable acts and/or damage. Accordingly, it is appropriate to approach the question through a consideration of some related situations."
The question whether the appellant is liable turns upon the degree of proximity between the negligent act (strictly speaking, the class of negligent cat) relied upon by the respondent and the kind of damage sustained by her [Jaensch v. Coffey [1984] HCA 52; (1984) 155 C.L.R. 549, at pp. 581-582; Hawkins v. Clayton (1988) 164 C.L.R. 539, at p. 576]. Gibbs C.J. observed in Sutherland Shire Council v. Heyman [(1985) [1985] HCA 41; 157 C.L.R. 424, at p. 441]:
If the facts fall into a category which the authorities already recognize as attracting a duty of care, then, as Gibbs C.J. acknowledged [(1985) [1985] HCA 41; 157 C.L.R. 424, at p. 441], this process will not be necessary. But in the present case the facts do not fall into a category which this Court, at any rate, has recognized as attracting a duty of care."