BHP Billiton Ltd v Dunning

BHP Billiton Ltd v Dunning - [2015] NSWCA 55 - NSWCA 2015 case summary — Zoe

HEADNOTE [This headnote is not to be read as part of the judgment] From December 1979 to March 1981 Mr Jake Dunning (the respondent) was employed by BHP (the appellant) as a cast-house floor labourer in the Blast Furnace Department at its Newcastle Steelworks. He suffers from mesothelioma which will cause his death. In his Statement of Claim filed in the Dust Diseases Tribunal, Mr Dunning alleged that the cause of his illness was the inhalation of asbestos dust and fibre during the course of his employment and that BHP had been negligent in the performance of its duties as his employer by permitting his exposure to that dust and fibre. Mr Dunning also alleged that BHP breached its statutory duties. By judgment dated 31 July 2014 the Tribunal found in Mr Dunning's favour and awarded him a judgment of $2,236,959.57 against BHP ([2014] NSWDDT 3). BHP appealed against that decision pursuant to section 32 of the Dust Diseases Tribunal Act 1989 (NSW). That section confers a right of appeal only in respect of dissatisfaction by a party with the Tribunal's decision "in point of law or on a question as to the admission or rejection of evidence." BHP's grounds of appeal alleged that the primary judge erred by:

Finding that BHP breached its duty of care to Mr Dunning on the basis that it knew that there was some unquantifiable risk from exposure to asbestos and that there were practicable alternative measures to reduce such risk, rather than asking whether the level of known risk to Mr Dunning as a result of his exposure to asbestos was such as to require BHP in the exercise of reasonable care to take precautions for the protection of Mr Dunning additional to those which it was already taking.
Admitting as evidence of the fact: (a) Statements of Mr John Gillespie (a former employee of BHP) that certain materials contained 'asbestos'; (b) Evidence of Mr Gillespie purporting to calculate the average number of hours per month of 'exposure' of members of the cast-house floor team to specific products and processes being or containing 'asbestos' between 1979 and 1981.
Finding that Mr Dunning was exposed to respirable asbestos fibres (of the type and to the extent he described) during his employment when such findings were not reasonably open on the admissible evidence or were not justified by adequate reasons.
Finding that BHP did not issue warnings or education to its employees about the health risks of exposure to asbestos; that supervisors did not enforce a ban on the use of compressed air for cleaning; and that atmospheric testing was not done, when such findings were not reasonably open on the evidence or were not justified by adequate reasons. Held, dismissing the appeal (per Basten JA, Macfarlan JA and Meagher JA): (1) The primary judge did not err in finding that BHP had breached its common law duty of care because it did not take any of the practical alternative measures available to it which would have reduced Mr Dunning's exposure to asbestos. In particular, his Honour did not, as BHP contended, assume that a finding of breach should follow automatically from a finding of foreseeability of a risk of injury. (2) As to Ground Two: (a) The primary judge did not err in admitting Mr Gillespie's evidence as evidence of objectively observed fact, given that Mr Gillespie was intimately familiar with the operations of the Blast Furnace Department, that he was responsible for overseeing the replacement of products containing asbestos and that BHP had admitted by its documents that the products to be replaced did in fact contain asbestos. Mr Gillespie's evidence was not opinion evidence and therefore did not require resort to section 78 or 79 of the Evidence Act 1995 (NSW) to support its admission. (b) Mr Gillespie's evidence concerning the worker's, exposure to asbestos was admissible as evidence of the practices of the Blast Furnace Department. Its generality was no barrier to its admission: Connor v Blacktown District Hospital [1971] 1 NSWLR 713 at 721 referred to. (3) The primary judge did not err in finding that Mr Dunning was exposed to asbestos fibres from various products that were in use during his employment with BHP. (4) The primary judge did not err in his findings concerning the practical alternative measures available to BHP to reduce the risk of injury to its workers.

[4]

Judgment

BASTEN JA: The respondent, Steven Douglas Dunning, suffers from mesothelioma, a malignant tumour of the epithelial lining of the lung, for which there is no available cure.
There is a single accepted cause of the condition, namely inhalation of asbestos fibres. Although it was once thought that a tumour could be caused by a single fibre, the medical evidence at trial supported the view that all inhaled fibres probably contribute to the condition, so that any exposure to airborne asbestos resulting in inhalation of fibres at a level which is not trivial or de minimis will probably make a material contribution to the processes by which the tumour develops. The expert evidence to that effect reflected that discussed in Amaca Pty Ltd v Booth. [1]
Following the diagnosis of his condition, Mr Dunning brought proceedings in the Dust Diseases Tribunal seeking damages from BHP Billiton Ltd. He had been employed by BHP as a cast-house floor labourer in the blast furnace department at its Newcastle Steel Works between 10 December 1979 and 20 March 1981. He alleged that he had been exposed to asbestos dust in the course of that employment, which had materially contributed to his condition. The Tribunal upheld his claim: on 31 July 2014 it awarded him damages amounting, in round terms, to $2.237 million: Dunning v BHP Billiton Limited. [2]
BHP has appealed from that judgment. Its statutory right of appeal is limited to errors in point of law, or as to the admission of evidence. [3]
BHP did not deny that it had in the past used asbestos-based products in its blast furnaces at Newcastle Steel Works. Rather, it contended that Mr Dunning had not proved that such products were in use during the period of some 15 months of his employment, from December 1979 to March 1981. Before the Tribunal, Mr Dunning had called evidence from a former general foreman of the blast furnaces, Mr John Gillespie, who gave evidence as to the use of asbestos-based products in the blast furnaces. BHP took objection at trial to the admissibility of that evidence. Its objections were rejected and the evidence was admitted. It appealed those rulings.
A second basis for the appeal lay, broadly, in a complaint that the trial judge could not properly have made a finding as to breach of duty without the plaintiff establishing to his satisfaction that he was exposed to a particular level of atmospheric asbestos, sufficient to require his employer to take steps, additional to those already in place, to reduce the risk of harm. In failing to make that assessment, it was contended, the judge imposed on BHP a legal obligation to reduce the risk to zero, an approach which was not consistent with a duty to take reasonable care.
Thirdly, BHP argued certain findings of fact were "not reasonably open" on the evidence, a ground said to raise an error of law.
The factual and procedural background has been further explained by Macfarlan JA and need not be repeated. The appeal should be dismissed, for the reasons he gives, and for the following reasons. It is convenient first to deal with the question of admissibility, as it is logically antecedent to questions as to the manner in which the judge analysed the evidence.

[5]

Admissibility of evidence

Mr John Gillespie, an important witness for the plaintiff, described himself as a steel industry consultant. He commenced as a trainee in metallurgy at the Newcastle Steel Works with BHP in 1969. He completed his traineeship in 1973. From 1974 to 1977 he worked as a furnace foreman in the blast furnace department. From 1978 to 1986 he continued in that department, progressing to the position of Assistant Superintendent Blast Furnaces. Before becoming a consultant, he was employed in the industry until 2009 when he was General Manager of manufacturing, with Comsteel.
Mr Gillespie's affidavit provided a comprehensive history of the operation of the blast furnace department, beginning in 1915. His description of the operations of the furnaces in the 1970s through to the mid-1980s demonstrated an intimate knowledge of the day-to-day activities of those working within that department. None of his expertise and experience in that respect was challenged. However, objection was taken to each part of his affidavit in which he referred to materials used in the blast furnaces as being made of or containing "asbestos". By way of example, his description of such materials began with the following passage: [4] "From the commencement of my work in the Blast Furnace department until about the mid 1980's (about 1984 or 1985) due to the extremely high temperatures generated and the need to protect equipment and workers from radiant heat and molten metal splashes, asbestos materials were extensively and regularly used by workers including boilermakers, electricians, fitters, refractory workers and casthouse crew including labourers. These materials included asbestos rope (greyish white in colour in various thicknesses and lengths on wooden spools), asbestos tape (greyish white in colour in various dimensions and lengths in coils), asbestos blankets (grey in colour with woolly fibres sticking out of them), asbestos cloth (grey in colour with a fibery woven texture), asbestos gaskets, asbestos millboard sheets (grey in colour and square in shape), asbestos insulation blocks (greyish white in colour and used to line the internal metal shell of parts of furnaces and the hot blast system including stoves prior to the 1980's; courses of refractory bricks were laid on top of this material), asbestos protective clothing including woven grey asbestos cloth back gloves, asbestos cloth gauntlets, asbestos aprons, asbestos spats and asbestos coats (in extreme conditions)."
In the following paragraphs of his affidavit [5] he described the uses of these various materials. The appellant objected to any use by Mr Gillespie of the term "asbestos", as evidence that the content of the product was asbestos. [6] The objection, as articulated in this Court, was that use of the term "asbestos" was not a perception of fact, but rather a lay witness expressing an opinion as to matters about which he was not qualified to speak.
The nature of the objection was curious, almost formalistic, given a proper understanding of the issues in dispute. The appellant's case was not that it did not use asbestos products in its blast furnace department; rather, its position was that, since at least July 1979 (four or five months before the plaintiff was employed) the company had commenced to reduce the use of such products, replacing them with asbestos-free alternative materials. That exercise required the direct engagement of those in managerial positions having control over the blast furnace operations. Mr Gillespie gave evidence that in about 1978-79 he became General Foreman - Blast Furnaces and was involved from 1979 to 1981, in "attempting to implement a direction that asbestos should be moved from the plant at BHP in Newcastle". [7]
There was documentary evidence that management set out to "replace asbestos cloth, tape, cord and gloves with substitute materials … as quickly as practicable". [8] That memorandum was accompanied by a survey outlining the detail of asbestos use in each department at the steel works. The memorandum demonstrated that the company knew what products were made of or contained asbestos and expected its managers to be able to identify those products and to seek replacements for them. Nor was there any real dispute that asbestos was still in use in November 1979 when a memorandum from the Chairman Industrial Hygiene Committee to "all concerned" was issued. [9] The memorandum indicated that "[w]ork will continue on researching substitute materials and as they are found to be practical and appropriate they will be used." The memorandum also recognised that "it is not possible to completely eliminate asbestos from our operations." However, the memorandum, in the passage addressed to "You, the worker," referred to the importance of each worker in "minimising the amount of asbestos dust in the air." It assumed that all workers were able to identify asbestos products and the dust they produced.
Against this background there is something mischievous about the position taken by the appellant in this litigation to the effect that its General Foreman - Blast Furnaces was not competent to identify asbestos products in the blast furnace department during the time he was working there. There was, however, a second limb to the appellant's defence. It related to the attempted substitution with non-asbestos-based products, which, Mr Gillespie accepted, were being trialled during the period of the plaintiff's employment. In relation to that exercise, a more precise objection was identified, namely that Mr Gillespie did not have the expertise to distinguish between asbestos and asbestos-free substitutes.
Taken in the abstract, there might be force in such a complaint. The matter is not, however, to be viewed in the abstract, but in the context of the day-to-day operation of the blast furnace department. So far as the replacement process was concerned, Mr Gillespie gave the following evidence-in-chief: [10] "Q. … You say … there was never any prohibition against the use of asbestos containing materials in the blast furnace department. What's the basis for that assertion? A. - In about 1979 we were asked to try and replace all the asbestos materials as soon as we possibly could. We tried a lot of different materials but they failed initially so obviously the furnace had to keep going so we had to do our best to control the immediate risks against the long-term risks of exposure to asbestos. The immediate risk being the heat and splash and gas and things like that. So we had to weigh up the immediate dangers against the long term risks. Q. Incidentally, did you regard yourself as part of the management team on the cast house floor? A. Yes."
In his affidavit, Mr Gillespie identified various asbestos-free alternatives which were investigated and tested on a trial basis. [11] His conclusion was expressed in the following terms: [12] "For a number of years (until about 1984 or 1985) we had significant problems with the substitutes that were trialled. They were simply not up to the task. Examples included the failure of gaskets and the creation of leaks in places where asbestos free alternatives were tried. For some years the asbestos free protective gear did not work against metal splashes and extreme radiant heat. …[A]sbestos containing materials, including rope, blankets and gaskets continued to be used in the Blast Furnace Department in the fashions I have described above by workers including labourers until the mid-1980's, probably until about 1984 or 1985. Even after this period asbestos dust continued to be generated from the removal of old asbestos packing and insulation in the areas I have described above."
One aspect of the identification of products which were asbestos-free and those which were not, followed from the names by which they were known, whether these were trade names or names in common use in the steel works. Thus, names of asbestos-free alternatives are found in the passage set out above from Mr Gillespie's evidence. There was also evidence that asbestos rope, for example, was known as such by suppliers and users.
In circumstances where asbestos-based products were sought to be removed from the plant and asbestos-free alternatives substituted, the fact that a product labelled as asbestos-free was being sought to replace another product would itself constitute evidence, in the circumstances set out above, that the other product contained asbestos. Accordingly, any person who described, from personal observation and experience, the process of replacement would be giving admissible evidence from which an inference could be drawn as to the presence of asbestos-based materials in the plant.
To adapt an analogy from Howard Smith v Comcare, [13] a member of the public viewing a panelled display home may not be able to tell whether the panelling is wood or a plastic substitute; however, the tradesman who fitted the panelling might well be able to express such an opinion. Where people work with particular materials over an extended period they may acquire knowledge from experience as to the nature of those materials. Whether evidence as to the nature of the materials is properly characterised as a perception of an objective fact, an expert opinion based upon specialised knowledge derived from extended experience, [14] or a lay opinion which cannot readily be reduced to more basic elements, [15] may be a matter of characterisation which will depend upon the particular circumstances of the case. No doubt, where a particular basis is relied upon, different grounds of challenge may arise from those which would arise with respect to a different categorisation. However, if any of those characterisations is satisfied, the evidence will be admissible.
It may thus be seen that there are a number of ways in which Mr Gillespie's evidence could be characterised, with the conclusion that it was admissible as evidence of the use of asbestos products during the period of the plaintiff's employment at the steel works.

[6]

Breach of duty

The appellant's argument with respect to ground 1 may be encapsulated in the following propositions. First, it accepted that BHP owed Mr Dunning a duty as his employer to take reasonable care to avoid exposing him to harm in the course of his employment. Secondly, the argument accepted that Mr Dunning had been exposed airborne asbestos whilst working in the blast furnace department. Thirdly, although the judge was not required to adopt the particular "threshold limit value" adopted for airborne asbestos fibre by the NH&MRC, at the relevant time, he was required to determine the level of risk which was known, or ought to have been known to BHP at the time, in order to find that further steps were required to be taken beyond those which were taken. Fourthly, the failure to adopt the last step, referred to on occasion as "quantification" of risk, effectively required that the risk be reduced to zero. Fifthly, that approach was erroneous, the law not requiring that risk be eliminated, but merely that reasonable steps be taken to minimise the risk.
The NH&MRC standard referred to the number of fibres per millilitre, measured by a particular method. The actual measurements were derived from a guide established by the American Conference of Governmental Industrial Hygienists (ACGIH). In adopting the guidelines, the occupational health guide noted that it was "not claimed by ACGIH that TLVs are 'no-effect' levels which guarantee protection to every worker. Given the nature of biological variation, it is inevitable that a very small proportion of workers exposed to a particular chemical may react at or below the levels prescribed." [16] With respect to asbestos, that has otherwise been expressed as meaning that there are no known safe levels of exposure. That was accepted by the appellant in its contemporary documentation and statements of intention to remove all asbestos from its processes, to the extent that it was practically possible.
There was argument as to what was meant by "quantification" in this context. There was a dispute as to whether the appellant monitored levels of airborne asbestos dust in the blast furnace area. If it did, no readings were available at trial. No one who worked in the blast furnaces gave any evidence of knowledge of such monitoring. However, the appellant did not suggest that the plaintiff must fail because he could not establish precise readings for his exposure.
There was also a dispute as to what was meant by an "acceptable" level of risk. That language was adopted from English decisions comparing the common law with the requirement that working conditions are "safe" for the purposes of the Factories Act 1961 (UK). Thus, in Williams v University of Birmingham [17] Aikens LJ noted the need to bear in mind "that some degree of risk to employees may be acceptable." For that proposition, he made reference to the judgment of the Supreme Court in Baker v Quantum Clothing Group Ltd. [18] Again discussing the Factories Act, and the analysis by Smith LJ in the Court of Appeal in that matter, Lord Dyson JSC said: [19] "She says that at common law a risk might be regarded as acceptable, whereas under the statute the duty is to avoid any risk within the limits of reasonable practicability."
It is clear that the word "acceptable" is not being used as a term of art: in relation to the common law, it refers to that level of risk which may remain after it has been determined what steps a reasonable person in the position of the defendant should have taken to ameliorate the risk.
Mesothelioma is a rare condition: it is likely that its incidence depends on genetic susceptibility of particular individuals, although the circumstances of that susceptibility are not presently known. It is nevertheless accepted that some individuals may suffer mesothelioma after exposure to far lower levels of asbestos dust than would be required for other asbestos-caused conditions. It is for that reason that the risks associated with such exposure may be described as "small" or even "extremely low". [20] Such language certainly did not refer to the consequences if the risk materialised: the disease not merely leading to death, but to a painful decline and death.
It is not particularly helpful, in these circumstances, to discuss levels of risk as "acceptable" or "unacceptable". The question which the law poses is whether the defendant with knowledge, or constructive knowledge of the risk, took those steps which were reasonably available in all the circumstances.
Those steps may fall into three broad categories, namely (a) removing the source of the risk, that is, removing the use of asbestos products in the workplace; (b) warning the workforce as to safe and unsafe practices and the risks associated with inhaling asbestos dust, and (c) providing protection to be adopted by the worker. To speak of "acceptable risk" is usually to speak about the steps which can be taken falling within (a). Thus, the risk of falling from a balcony may be reduced by raising the guardrail; by reducing the noise in a noisy workplace, [21] or, in the present case, by removing asbestos-based products. Where it is not reasonably practicable to eliminate the risk in question, the taking of all reasonable steps to reduce the risk may be said to reduce it to an acceptable level. However, the provision of training, warnings and protective equipment does not readily attract such language. The plaintiff's claim in the present case was not that the appellant failed to take all reasonably practicable steps to remove asbestos in a timely fashion (although such particulars were pleaded and there was some evidence that steps proposed by management were not diligently pursued) but rather that adequate warnings and training were not provided and physical protection (such as means of reducing dust or reducing the inhalation of dust) were either unavailable or their significance was not explained. In this context, the concept of acceptable risk was unhelpful.
Ultimately, the appellant's submissions reduced to the complaint that the course prescribed by Mason J in Wyong Shire Council v Shirt [22] was not followed. Mason J stated: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of 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 the defendant may have." [23]
The italicised passage called for an assessment which, it was submitted, the trial judge did not undertake; it followed, that he was not able to take the balancing exercise which the law prescribed.
This language is not required to be applied in some inflexible or mechanical manner. An accepted risk of very serious harm which can be eliminated by a step which presents no difficulty, no disadvantage and no expense would be the kind of step which a reasonable person might be expected to take. [24] That was the course adopted by the trial judge. In assessing whether the risk of harm was reasonably foreseeable, and referring to the submission of counsel for BHP, he stated: [25] "Mr Parker then submitted that the issue of reasonable foresight of injury in this case must be assessed in the defendant's favour because the risk had not been quantified. The sufficient answer to that, in my view, is that it does not have to be. Further, it is relevant to note here that one of the results of the risk coming home is death."
As the appellant fairly submitted, that reasoning affected the manner in which the trial judge dealt with the question of breach, which he did under the heading "reasonably available practical alternative measures". [26] Having identified those measures, he then stated: "[747] I deal with each of these matters. In respect of these matters, in this case once it is determined that they are practical alternative measures that could have been adopted, there is nothing in the other matters that need to be considered (Wyong Shire Council … at [47-8]) in determining breach, that would lead to the view that these steps need not have been taken. [748] So far as practicability of each of these measures is concerned, one thing to note is that every one of them was suggested and recommended by the defendant. They can all be found in the defendant's documents."
The attempt to identify legal error in the approach adopted by the trial judge in dealing with the question of breach (which is usually assessed as a straightforward example of a factual determination) is that it did not fit well with the factual case run by the appellant at trial. That case had the following elements: (a) by July 1975 (several months before the plaintiff was employed) BHP had identified all uses of asbestos within the Newcastle Steel Works; (b) management had commenced steps to remove asbestos wherever reasonably practicable, and (c) the plaintiff's evidence did not demonstrate that asbestos continued to be used in association with the blast furnaces after the commencement of his employment. Although the appellant contended, quite legitimately, that the taking of particular steps did not entail the conclusion that such steps were a necessary element in the performance of a duty to take reasonable care, [27] those circumstances undoubtedly affected the way the trial judge approached the question of breach and, in particular, an assessment of what steps a reasonable employer in the position of BHP should have taken.
The appellant has failed to demonstrate any error of law on the part of the trial judge in addressing the question of breach.

[7]

Sufficiency of evidence

It is uncontroversial that, on an appeal limited to error in point of law, the party not bearing the burden of proof may establish legal error by demonstrating that there was "no evidence" capable of supporting an ultimate fact. [28] Once Mr Gillespie's evidence was admitted (and perhaps without that evidence) the appellant could not say that there was no evidence that the plaintiff was exposed to airborne asbestos in the course of his employment. Rather, grounds 3 and 4 attacked particular findings of fact as "not reasonably open" on the evidence or "not justified by adequate reasons." The latter ground was not placed at the forefront of the appellant's case in this Court and should be dismissed for the reasons given by Macfarlan JA. However, the use of the phrase "not reasonably open" requires further consideration, as it appears to invite a review of the correctness of the fact-finding process.
The appellant justified the use of that language by reference to the reasoning of Mason CJ in Australian Broadcasting Tribunal v Bond. [29] The passage in question involved a consideration of two grounds available for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) namely review for "error of law" [30] and on the ground that "there was no evidence or other material to justify the making of the decision". [31] Mason CJ stated: [32] "The question whether there is any evidence of a particular fact is a question of law …. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law ... This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions … So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law .... But it is said that '[t]here is no error of law simply in making a wrong finding of fact' …: 'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.' Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."
It is true that Mason CJ used the phrase "reasonably open", at least in relation to inferences. However, it would be contrary to an understanding of the passage read as a whole to suggest that an appellate court limited to error of law could assess the choice of available inferences to determine whether that accepted by the trial judge was the correct or reasonable choice in all the circumstances.
The appellant contended that the judge's exercise in fact-finding breached the principle identified in Jones v Dunkel [33] that a finding in a civil case cannot be made by choosing between available possibilities when there is "no rational reason to prefer one inference over the others". [34]
It is not necessary for present purposes to consider further the limitations on a challenge to inferences which may establish error of law. The findings challenged by grounds 3 and 4 were findings of fact which did not involve inferences drawn from primary facts: they were - (a) whether the plaintiff was exposed to respirable asbestos fibres "of the type and degree set out by the Tribunal at specified paragraphs"; (b) whether the appellant did not issue warnings or educate its employees about the health risks of exposure to asbestos, and (c) the appellant's supervisors did not enforce the ban on use of compressed air for cleaning; (d) atmospheric testing was not done.
In dealing with findings of primary fact, the question of law identified in Bond was whether there is "any evidence of a particular fact".
The appellant also sought assistance from a passage in the reasoning of the Court in Amaba Pty Ltd v Booth. [35] In relation to particular findings of fact, I said: [36] "Implicit in the statement that there is no evidence to 'support' a particular finding, is the characterisation of a relationship between the evidence and the finding. It is the same relationship inherent in the concept of 'relevance', on which the laws of evidence depend. That relationship depends on a process of reasoning which must be logical or rational. Thus, evidence is relevant which, if accepted, 'could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding': Evidence Act 1995 (NSW), s 55(1). As explained by Gleeson CJ, Heydon and Crennan JJ in Washer v Western Australia [2007] HCA 48; 234 CLR 492 at [5]: 'The word 'rationally' is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury's assessment of the probability of the existence of a fact in issue at the trial.'"
This passage did not support an assessment of how the evidence was deployed in the reasoning of the Tribunal, but rather noted the need for a rational connection between particular evidence and a finding of fact in order to say that there was some evidence capable of supporting the finding.
The principles governing the Court's jurisdiction must be stated as carefully and succinctly as possible. Nevertheless, distinctions between fact and inference and between capacity to support a finding and the assessment in making the finding are not characterised by bright line boundaries. Accordingly, it is helpful to provide explanation by way of example.
First, it was not in doubt that both structural elements of the blast furnaces and the protective gear worn by the workers had, until at least the late 1970s, involved asbestos and asbestos-based products. Absent evidence of change in the structures and the practices, that evidence would be sufficient to allow an inference of continuity up to and including the period during which the plaintiff was employed. In other words, evidence of a past state of affairs was capable of supporting an inference as to the state of affairs in the material period. There was, however, evidence of an awareness of the part of management of a need to make changes, the conduct of a survey to identify the scope of the changes required and the giving of directions as to steps to be taken to remove asbestos from the workplace. That material was capable of supporting an inference that such changes were made and that after a reasonable period, it could be inferred that asbestos was no longer used. If that were all the evidence before the trial judge, there would be evidence capable of supporting either inference: quite apart from the question of which party bore the burden of proof, it would not be open to either party to challenge the finding made by the trial judge. Nor would it be open to say that an inference favourable to the plaintiff could not be drawn because there were equally firm inferences available in either direction. The competing inferences were based on quite different material and it was well within the scope of the tribunal of fact to determine which was to be preferred. Indeed, the matter was beyond doubt because there was, in addition to the evidence just noted, evidence from workers in the blast furnace which was inconsistent with immediate and effective changes of the kind relied upon by the appellant. Accordingly, it was not open to the appellant to submit that there was "no evidence" capable of supporting a finding that the plaintiff was exposed to airborne asbestos during his period of employment.
Secondly, there was an argument which sought to distinguish primary facts, identified at a high level of specificity, from ultimate findings, which were classified as inferences. Thus, the appellant sought to identify the specific elements in the blast furnaces and the work practices of the company's employees which involved asbestos. Thus, for example, it focused upon gloves said to be asbestos backed to protect against the heat of the furnace which, the company alleged, were withdrawn from service at some stage. Mr Gillespie was vague as to when that had occurred; accordingly, the evidence was not capable of establishing on the balance of probabilities, so it was submitted, that it did not occur prior to 10 December 1979. The fact that there was no affirmative evidence that it did occur prior to December 1979 was not to the point, the appellant submitted, because it was the plaintiff that bore the onus of proof with respect to the particular period. In any event, there was evidence that gloves containing asbestos were no longer used in the blast furnaces because a survey undertaken by the company in July 1979 referred to gauntlets and gloves as being used only in a different part of the steel works (the Sinter plant). [37]
In Azzopardi, in explaining why only the party which did not bear the onus of proof could rely upon a no evidence ground, Glass J explained that "[t]he party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence." [38]
Of course, where the tribunal of fact has made findings, that may indicate that particular evidence has been accepted or not accepted: in the present case the Tribunal did not accept the accuracy of the report of the asbestos survey to the extent to which it listed the use of asbestos in the blast furnaces. With respect to gauntlets and gloves, there was no indication at all as to use in the blast furnace even though it was listed as a form of protection for "personnel clothing", [39] and the report stated that the summary included indications 'where alternatives have already been introduced." [40] The trial judge was entitled to reject the comprehensiveness of the survey results, as he did. There was some evidence capable of demonstrating that, in various ways, the plaintiff was exposed to asbestos dust in the course of his employment in the Newcastle Steel Works, blast furnace department. The fact that contrary inferences were also open was beside the point. The appellant failed to establish any error of law based on absence of evidence to support the material findings of fact.
MACFARLAN JA: From December 1979 to March 1981 Mr Jake Dunning, the respondent, was employed by the appellant ("BHP") as a cast-house floor labourer in the Blast Furnace Department at its Newcastle Steelworks. He suffers from mesothelioma which will cause his death. He is now 54 years old.
In his Statement of Claim filed in the Dust Diseases Tribunal, Mr Dunning alleged that the cause of his illness was the inhalation of asbestos dust and fibre during the course of his employment and that BHP had been negligent in the performance of its duties as his employer by permitting his exposure to that dust and fibre. Mr Dunning also alleged that BHP breached various of its statutory duties.
After a hearing in 2013 and 2014 of about six weeks, the Tribunal (constituted by Judge Kearns) by judgment dated 31 July 2014 found in Mr Dunning's favour and awarded him a judgment of $2,236,959.57 against BHP. [41] BHP appeals against that decision pursuant to section 32 of the Dust Diseases Tribunal Act 1989 (NSW) (the "DDT Act"). That section confers a right of appeal only in respect of dissatisfaction by a party with the Tribunal's decision "in point of law or on a question as to the admission or rejection of evidence."
BHP's grounds of appeal allege that the primary judge erred by: "1. Finding that the Appellant breached its duty of care to Mr Dunning on the basis that the Appellant knew that there was some unquantifiable risk from exposure to asbestos and that there were 'practicable' alternative measures to reduce such risk (DDT [734] and [747]), rather than asking whether the level of known risk to Mr Dunning as a result of his exposure to asbestos was such as to require the Appellant in the exercise of reasonable care to take precautions for the protection of Mr Dunning additional to those which it was already taking. 2. Admitting as evidence of the fact:- 2.1 Statements by the witness John Gillespie that certain materials contained 'asbestos': DDT [549]-[562]. 2.2 Evidence by Mr Gillespie purporting to calculate the average number of hours per month of 'exposure' of members of the cast house floor team to specific products and processes involving 'asbestos' between 1979 and 1981: DDT [158]-[160]. 3. Finding that Mr Dunning had exposure to respirable asbestos fibres during his employment by the Appellant of the type and degree set out at DDT [589]-[590], [603], [624], [639]-[640], [647]-[649], and [650] when such findings were not reasonably open on the admissible evidence or were not justified by adequate reasons. 4. Finding that the Appellant did not issue warnings or education to its employees about the health risks of exposure to asbestos (at DDT [753]-[755]); that supervisors did not enforce the Appellant's ban on the use of compressed air for cleaning (at DDT [758]); and that atmospheric testing was not done (at DDT [761]), when such findings were not reasonably open on the evidence or were not justified by adequate reasons."
For reasons given below, I consider that these grounds of appeal should be rejected and that BHP's appeal should be dismissed with costs.

[9]

MR GILLESPIE'S EVIDENCE

Mr John Gillespie was called to give evidence in Mr Dunning's case. He was employed by BHP in various capacities from 1969 until 1996. He had extensive experience working in the Blast Furnace Department, having held the position of General Foreman Blast Furnaces in 1978 and 1979 and Senior Site Services Supervisor Blast Furnaces from early 1980.
In his first affidavit, Mr Gillespie said that he had become "intimately aware" of the operations of the Blast Furnace Department in the course of his employment by BHP. He said that asbestos materials were extensively used in the department "until about the mid-1980's (about 1984 or 1985)" and that in about 1979, as a result of concern about the exposure of workers to asbestos dust, "some attempts were made to investigate and trial asbestos free alternatives". He said that because the trials were unsuccessful, "[u]ntil the mid-1980's asbestos rope, tape and protective gear continued to be stocked and dispensed as required. When the substitutes became suitable we ceased ordering asbestos containing materials."
In his second affidavit, Mr Gillespie said that it was impossible for labourers in the Blast Furnace Department to avoid regular exposure to asbestos. He annexed a table giving estimates of the average duration of the exposure of such labourers to asbestos in the course of performance of different identified tasks.
Over objection, the primary judge provisionally admitted Mr Gillespie's description of products as "asbestos" as evidence that they were asbestos. Again over objection, his Honour admitted the evidence contained in Mr Gillespie's second affidavit.
Orally in chief Mr Gillespie was asked to explain the basis upon which he described various products as "asbestos". He said that he had been trained "in what are the materials, asbestos and otherwise" and had "a certificate in refractories" (materials used to resist heat) and that "these materials were actually labelled and ordered as asbestos materials". [42] He also said that he was able to recognise asbestos materials from their texture and fibrous content and that he was involved in attempting to implement a direction that asbestos be removed from the Newcastle plant. [43]

[11]

Mr Dunning's exposure to asbestos

The primary judge found that in the course of his employment Mr Dunning was exposed to asbestos in the following ways: 1. Insulation rope on cooling blocks Two of the four blast furnaces (numbers 1 and 2) in the Blast Furnace Department included about 200-300 cooling blocks that were driven into the shells of the furnaces. They were driven in through apertures and were packed with asbestos rope (or cord) as insulation. The cooling blocks needed to be replaced regularly. This occurred during furnace shutdowns which occurred on both a planned and an unplanned basis. A planned shutdown of furnace 1 or furnace 2 occurred each month. The primary judge held that Mr Dunning was exposed to asbestos in the changing of cooling blocks during both these planned shutdowns and also during unplanned shutdowns which occurred about 10 times per month during his employment. [49] His Honour found that the process of removal involved "relatively high intensity" exposure to asbestos. [50] 1. Hose sleeves on the taphole drill Each furnace had a taphole at its bottom that was plugged with clay by a mud gun. The mud gun was a large piece of machinery with several hoses, bagged with asbestos insulation, attached to it. The primary judge found that the taphole for each blast furnace was changed about once per week and that the task of changing and cleaning up took about half an hour. Mr Dunning was often involved in this activity. 1. Gloves The primary judge found that Mr Dunning "wore asbestos backed gloves at least on average for half an hour every working day" and that "[t]he wearing of the gloves gave off asbestos dust in the normal carrying out of the work". [51] 1. Blankets The primary judge held that Mr Dunning handled asbestos blankets "at least once a week and sometimes more" and that "[h]e was exposed to asbestos dust and fibre given off by the blankets when he handled them". [52] The blankets were used for protection from radiant heat and metal splashes. 1. Cleaning The primary judge found that cleaning up was a regular part of Mr Dunning's work in the blast furnace which he undertook "probably twice a day". [53] Compressed air was used by the labourers, including Mr Dunning, involved in cleaning up. He found that this resulted in Mr Dunning's exposure to asbestos as asbestos dust had been liberated by the various work processes. The exposure was accentuated by the use of compressed air which tended to disperse the dust. 1. Daily change of clothes The primary judge made the following finding in this respect: "All the processes that the plaintiff worked on resulted in asbestos dust and fibre getting on his clothing. Undoubtedly other dust did too. It was inevitable, however, at the end of each day and at the beginning of most days, that he changed his clothes which were impregnated with asbestos dust and in the process released dust including asbestos dust into the atmosphere around him as he was changing. It is inevitable that this was a daily occurrence so far as asbestos dust was concerned …". [54]

[12]

Foreseeability of Mr Dunning's injury

The primary judge made the following finding concerning the knowledge of Mr Ernest Bryon, a former officer of BHP who was a witness and whose knowledge the parties accepted to be knowledge of BHP. At the material times Mr Bryon was the Newcastle plant's Superintendent of Safety and was Chairman of its Occupational Hygiene Committee. "655 From 1978, Mr Bryon knew that: •asbestos dust posed health risks to humans; •its inhalation could cause cancer and mesothelioma; •the probability of risk was extremely low with exposure below a certain level; •there was some risk of getting cancer and mesothelioma and there was not any safe level so far as those diseases were concerned; •mesothelioma could be caused by short or intermittent exposure; •as long as there was any asbestos dust in the breathing environment, there was some risk of injury."
After reviewing various documents that were in evidence, his Honour continued: "669 These documents and Mr Bryon's knowledge establish that the defendant knew: •the matters set out in paragraph 655; •exposure to asbestos could cause mesothelioma; •the exposure could be for short periods and to low levels •the disease occurs many years after the exposure; •the association between exposure and the disease was incontrovertible; •persons not directly involved with exposure could contract the disease, for example, labourers, cleaners, persons sawing asbestos sheets for a day, persons living within a mile of an asbestos factory or living near a shipyard; •malignant respiratory carcinoma may result from slight transient contact with asbestos fibres in the air; •any compound, textile, powder, paint or contamination dust with five percent or over of asbestos content was particularly suspect. (The defendant's asbestos materials had between 64% and 90% with some minor irrelevant exceptions (Exhibit DX 3, 230)); •all areas where the defendant was using asbestos at Whyalla had potential cases of mesothelioma. This was not confined to lagging. It extended to the use of asbestos blankets, gloves and mats (p102 of Exhibit PX 41, Tab 188.21C); •the World Health Organisation had stated that it was not possible to assess whether there was a level of exposure below which an increased risk of cancer would not occur; •Dr Francis considered the safety standard was not suitable for cancer or mesothelioma; •there was no known level of exposure that could be considered safe. The Health Commission of South Australia was approaching the matter on the basis that any exposure was considered to be unsafe; •so long as there was asbestos dust in the working environment, there was a risk of mesothelioma."
Although his Honour thought, in light of his findings as to BHP's actual knowledge, that it was not important to consider the knowledge that BHP ought to have had, he nevertheless made the following findings on that topic: "721 I make the following findings as to the learning of the dangers of asbestos that was available in 1979 and the defendant ought to have been aware of: •the knowledge set out at paragraphs 655, 669; •in the 1960s, the association between mesothelioma and asbestos was widely recognised; •by 1965, the view was expressed that a more serious and widespread hazard from exposure to asbestos dust may exist than was widely appreciated; •asbestos was toxic in sufficient quantities; •toxic effects included asbestosis, cancer and mesothelioma; •each of these diseases was known to be fatal or potentially fatal; •the effects of exposure were not immediate and took many years to develop; •there were cases of mesothelioma attributed to relatively, in some cases extremely, short, low level and transient exposures; •there was no level that was known to be safe; •individuals varied in their reactions to asbestos dust; •doubts, if not outright rejection, were being expressed about the suitability of standards to deal with carcinogenic illness."
The primary judge's conclusions on the foreseeability to BHP of Mr Dunning's injury included the following; "724 Knowledge of the association between asbestos and mesothelioma was a developing thing. By the time the plaintiff started with the defendant, the association was established and widely recognised. It was not known if there was some safe level to which a person could be exposed. There was literature about low, even extremely low, levels of exposure causing mesothelioma. The literature was advising that no level could be assumed to be safe and the Health Commission of South Australia was proceeding on that basis. One of the consequences of exposure was death. This meant that though the risk might be classed as small, it was nevertheless real and its consequence was calamitous. The defendant knew that at Whyalla all workers exposed to asbestos were potential mesothelioma victims. Past history from the literature was available to inform the defendant that mesothelioma had occurred in cases of intermittent and of low levels of exposure and its own knowledge informed it that it could happen in the future from short or intermittent exposure. … 734 Mr Parker [senior counsel for BHP] then submitted that the issue of reasonable foresight of injury in this case must be assessed in the defendant's favour because the risk had not been quantified. The sufficient answer to that, in my view, is that it does not have to be. Further, it is relevant to note here that one of the results of the risk coming home is death. 735 Mr Parker relied on the NHRMC standard as having been set by an authoritative group of people. He submitted the standard, having been set by that body, it would not be reasonable to say that an employer should look any further than the standard. The matters I have set out, especially the recurrent exposure of the plaintiff to asbestos and the defendant's state of actual and constructive knowledge demonstrate that that should not be accepted."
The standard upon which Mr Parker relied was contained in a statement issued by the Australian National Health and Medical Research Council ("NHMRC") recommending Threshold Limit Values ("TLV") for asbestos. His Honour did not make, and the evidence did not warrant, any finding as to whether the standard had or had not been exceeded during the period of Mr Dunning's employment.
His Honour continued: "736 Further, •whilst the evidence discloses that the defendant was aware of the standard, it does not show that it was aware of its being a document set by an authoritative group of people or that it relied on it for that reason; •there is nothing in the evidence to suggest that the defendant had any awareness that what was set out in the standard was any more authoritative, if it was at all, than any other information it had; •the defendant had actual knowledge of the risks to health posed by exposure to asbestos; •the evidence satisfies me that the defendant did not rely on the standard at least in the blast furnace department as it did no atmospheric testing for asbestos in that department at or before the time the plaintiff was there to determine whether it complied with the standard; •to the extent that there was any scientific consensus about the standard, there was no suggestion that there was one to the effect a worker could be exposed to asbestos without risk of injury. There was no suggestion that there was a consensus that a worker could work within the limits of the standard without risk of injury. There was a consensus that the exposure needed to cause mesothelioma was considerably less than that needed to cause asbestosis. There was a strong body of evidence that the standard was not appropriate for mesothelioma. That is not answered by saying that Dr Francis and others were not part of the authoritative group of people who set the standard. If that is the answer, the consensus is one confined to a small group of people; •insofar as the defendant asserts that the standard set a measure that was adhered to in practice by industry participants, there is no evidence that was so and there was evidence that the Health Commission of South Australia was not proceeding on the basis of the standard or a so-called consensus. It was taking the approach that all exposure levels were unsafe. 737 In my view, there was a reasonably foreseeable risk of injury to the plaintiff in the circumstances of this case."

[24]

GROUND ONE: THE BREACH FINDING

As the Civil Liability Act 2002 (NSW) was inapplicable, [63] the primary judge was required to determine whether BHP breached its common law duty of care by applying the principles that Mason J stated (with the concurrence of Stephen and Aickin JJ) in Wyong Shire Council v Shirt. [64]
Having said that a risk of injury which is "quite unlikely to occur" may, in contrast to a risk that is "far-fetched or fanciful", be foreseeable, Mason J continued: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of 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 the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable."
As is apparent from the extracts in [67]-[69] above of the primary judge's reasons, his Honour first considered whether the risk of injury to Mr Dunning as a result of exposure to asbestos in the workplace was foreseeable by BHP. His Honour held that the foreseeable risk was "real" and noted that the potential injury, if it occurred, would be "calamitous" because one possible consequence of exposure was death. [65] His Honour rejected the proposition that the risk of injury occurring was "far-fetched or fanciful" [66] and held that the risk of injury to Mr Dunning was reasonably foreseeable. [67]
His Honour then turned to consider breach, concluding that there were "practical alternative measures" that could have been adopted (that is, measures that would have reduced or eliminated Mr Dunning's exposure to asbestos dust). Further, his Honour found that there was "nothing in the other matters that need to be considered" in accordance with Wyong Shire Council v Shirt "that would lead to the view that the steps need not have been taken". [68]
BHP contended on appeal that this reasoning involved an error of law in that the primary judge assumed that a finding of breach should follow automatically from his finding of foreseeability. It relied in this regard upon McHugh J's observation in Tame v New South Wales [69] that "the failure to eliminate a risk that [is] reasonably foreseeable and preventable is not necessarily negligence". BHP submitted that his Honour had not therefore recognised that some risks may be "acceptable", in the sense that a reasonable person in the defendant's position might not regard the risk as one to which a response was required, whether because of the unlikelihood of the risk coming to pass, the impracticability of eliminating it or other reasons. Consistently with this submission, it then contended that his Honour erroneously assumed that BHP would have been in breach unless the risk of injury to Mr Dunning was zero.
I do not accept that this fairly reflects his Honour's reasoning on breach. As BHP acknowledged, there are no express statements in the judgment which conflict with the approach in Shirt's case. As Mr Walker SC for BHP put it, he could not point to "any overt defiance of authority". [70] The argument that his Honour departed from the correct approach therefore depends upon inference.
Undoubtedly it would have been preferable for his Honour to have been more explicit in his reasoning by expressly asking, in accordance with Shirt's case, what was the "magnitude of the risk" (Mason J's reference to this seemingly being a reference to the severity of the potential consequences) and "the degree of the probability of its occurrence" and then balancing those matters with the others to which Mason J referred such as the "expense, difficulty and inconvenience of alleviating action". The final step would have been to consider what a reasonable person in BHP's position would have done by way of response to the risk in the circumstances so identified. However, this was in substance what his Honour did as his references to the relevant passage in Shirt's case and to "the other matters" to which Mason J there referred make it clear that his Honour applied the principles stated by Mason J. His Honour had the required balancing exercise well in mind.
If his Honour had approached his consideration of the issue of breach in the manner in which BHP suggested he did, it would have been unnecessary for him to refer to "practical alternative measures" or to the other matters referred to in Shirt's case: he would have proceeded directly from a finding of foreseeability to a finding of breach. Instead, he implicitly recognised that there could be some risks to which a reasonable person would not respond, for example, if there were no "practical alternative measures" by which the risk could be reduced or eliminated. Likewise one or more of the "other matters" to which Mason J referred might, on Kearns J's reasoning, have resulted in the foreseeable risk not being one to which the reasonable person would have responded.
Furthermore, his Honour did not assume that to avoid a breach of duty, BHP had to reduce the risk to zero. Plainly the "practical alternative measures" described in Judgment [746] [71] would not have reduced the risk to zero. Consistent with his Honour's finding those measures, if implemented, would have reduced the risk by a substantial margin, but not so as to eliminate the risk altogether.
BHP submitted in its written submissions in chief that: "The fundamental error on the part of Judge Kearns was to proceed on the basis that it was unnecessary to enquire into the level of risk associated with such asbestos exposure as Mr Dunning might have had, and that it was sufficient for the respondent to show that there was some risk, however small, of cancer (cf paragraph 10-19 above)" (at [64]).
In the earlier paragraphs of its submissions there referred to, BHP asserted that "[a]ny risk needed to be quantified - that is to say, one needed to be able to say how likely the risk was to eventuate". In its submissions in reply, BHP nevertheless made it clear that it was not asserting that the primary judge should have made a "mathematical" or "numerical" quantification but rather that he should have descended to "some degree of particularity" as to the likelihood of the risk eventuating. [72] In oral argument, Mr Walker SC, accepted that "the subject matter did not lend itself anywhere to what might be called precise or numerical quantitation … ". [73] This conformed with Gleeson CJ's observation in New South Wales v Fahy [74] that "[w]hat is involved [in the Shirt balancing exercise] is a judgment about reasonableness, and reasonableness is not amenable to exact calculation".
Contrary to BHP's submission, I do not consider that the primary judge erred in failing to be more particular in his description of the likelihood of the risk eventuating than describing it as "real" and "not far-fetched or fanciful". [75] As I have said, his Honour had in mind the balancing exercise that he was required to conduct. I doubt whether attaching any further labels to the magnitude of the risk would have assisted the performance of the evaluative exercise which his Honour undertook.
BHP asserted that the risk of injury to Mr Dunning was only "theoretical" because "the potential for lower levels of exposure to cause disease could be inferred as a matter of scientific theory, but had not been demonstrated empirically". [76] It submitted that such a risk "is not capable of passing the first stage of the two-part Shirt enquiry". [77] In my view there is no basis for such a proposition but in any event the primary judge's description of the risk as "not far-fetched or fanciful" and "real" demonstrates that he did not consider the risk to be merely "theoretical" in the sense in which that word is ordinarily used when describing a risk.
In its written submissions concerning breach, BHP contended that the primary judge erred in refusing "to take account of the evidence which showed that the NHMRC standard was understood at the time as defining an acceptable level of risk". [78] The primary judge concluded that the standard was not determinative of the present case but that BHP nevertheless should have had regard to it. This was a factual finding which BHP did not submit was made without an evidentiary basis, with the consequence that BHP has not in this context identified any relevant error of law. Indeed, in its written submissions in reply BHP appears to eschew a direct attack on these findings by describing their relevance to this ground of appeal as (only) being that "the very partial manner" in which his Honour dealt with the NHMRC evidence confirmed "that his Honour failed to turn his mind to the issue of the likelihood of the risk coming home at all". [79]
Finally in respect of this ground of appeal, I reject BHP's submission that the primary judge adopted "the wrong starting point in law for the determination of whether there was a relevant reasonably foreseeable risk". [80] This submission was founded on the proposition that his Honour did not have regard to the level of risk to Mr Dunning, as distinct from that "to persons with different levels of exposure to asbestos". [81] However his Honour stated expressly that he did have regard to the former [82] and the evidence of Mr Gillespie (the admissibility of which is discussed below) justified his Honour drawing conclusions as to the level of exposure to asbestos of all of the labourers in the Blast Furnace Department and therefore as to Mr Dunning in particular.
For these reasons, I consider that Ground One should be rejected.

[25]

Mr Gillespie's use of the word "asbestos" to describe certain material in use during the period of Mr Dunning's employment

In my view this evidence was, as the primary judge held, admissible as evidence of "objectively observed fact" [83] and was not opinion evidence requiring resort to section 78 or 79 of the Evidence Act 1995 (NSW) to support its admission. As the primary judge held, BHP itself "identified [the] product in situ as asbestos" and "then brought in substitutes and identified them as such". [84] In these circumstances, there was no need for evidence of the chemical composition of products as BHP, by its contemporaneous documents, had admitted that the relevant products were or contained asbestos. The documents leave no doubt about the products to which they were referring, such as the lagging rope and cloth in general use in the Blast Furnace Department at least as at July 1979. Mr Gillespie was intimately familiar with the operations of that department. According to his evidence, Mr Gillespie was the person responsible for testing the proposed replacement materials for asbestos and deciding whether or not they were satisfactory. [85] In these circumstances, Mr Gillespie was entitled to give evidence of his recollection of the extent to which that material continued to be used after July 1979 and when, if at all, its use ceased by reason of the introduction of replacement products. His use of the word "asbestos" in evidence reflected the way in which the pre-replacement products were described on a day to day basis. The evidence was admissible at least to enable identification of the products as those to which BHP's contemporaneous documents referred.
Whether, in light of the training and experience to which Mr Gillespie deposed, [86] admission of the evidence could have been justified under section 79 of the Evidence Act relating to expert opinions need not be addressed as that was not a basis on which the primary judge admitted the evidence and Mr Dunning did not file a Notice of Contention. The same comment is applicable to any possible application of section 78 of the Evidence Act, concerned with lay opinions, although I note that there were submissions on appeal directed to that section. I accept that the dividing line between evidence of observations and opinion may be indistinct. It is arguable that (contrary to my view) Mr Gillespie's evidence was of such generality that it amounted to opinion evidence (see in this respect the reference in Lithgow City Council v Jackson [87] to facts being "too evanescent to remember"). If that is the correct view, I consider that s 78 would have supported its admission.
I refer in conclusion to this Court's decision in Howard Smith v Comcare. [88] In that case, the Court held that experienced waterside workers were able to give evidence identifying relevant cargo as asbestos in circumstances where "no attempt was being made to distinguish types of asbestos or quantities of airborne material". As Basten JA said (with the concurrence of Beazley P and Sackville AJA), "what they described was based on what was, for them, common knowledge. Their evidence in that regard was admissible as evidence of a fact which they perceived". [89] In the present case, the primary judge found it unnecessary to rely upon Mr Gillespie's experience to identify the relevant products as asbestos because BHP had itself "identified produce in situ as asbestos". [90] For this reason, he said that Mr Gillespie's evidence did not "depend on Howard Smith for its admissibility". [91] Rather, Mr Gillespie's evidence was admissible because it indicated for how long products identified by BHP as or containing asbestos continued to be used.

[26]

Evidence as to the extent of exposure of blast furnace workers to asbestos

Mr Gillespie had extensive knowledge of the activities of the workers in the Blast Furnace Department, having held senior positions in the department over a lengthy period of time. [92] There was in my view no reason why he could not give in his second affidavit estimates of the average duration of exposure of workers to the dust which I have held above he was entitled to describe as asbestos dust. The evidence was factual evidence based upon Mr Gillespie's knowledge and experience. The fact that it related to a class of workers (of which Mr Dunning was a member), rather than to Mr Dunning specifically, did not affect its admissibility. The evidence was capable of rationally affecting (either directly or indirectly) the Court's assessment of the probability of Mr Dunning being exposed to asbestos dust for significant periods whilst working for BHP. It was therefore relevant evidence in accordance with section 55(1) of the Evidence Act.
I reject BHP's submission that Mr Gillespie's use of the word "exposure" as the basis of his estimates rendered them too uncertain to have any evidentiary value. Taken in the context of his evidence as a whole, I consider that it is clear that he was referring to the periods of time workers were engaged in tasks involving asbestos materials being used or dealt with.
Mr Gillespie's evidence as to average exposures was of a type commonly admitted in relation to the general course of a business. As was said in Connor v Blacktown District Hospital: [93] "[e]vidence of a relevant practice may be given by a person who, on a sufficient number of occasions and over a sufficient period, has regularly and uniformly performed acts, or has observed the regular and uniform performance of acts by others, under the same circumstances and upon the same occasions, so as to make it appear probable in the minds of reasonable men that, given the same circumstances and occasions, the like acts will again be performed." See also J D Heydon, Cross on Evidence. [94]
Such evidence of practice is not objectionable because it describes the practice in general terms without identifying all the individual acts which gave rise to the practice. Likewise, the generality of Mr Gillespie's evidence did not render it inadmissible.
Similarly, in Strong v Woolworths Ltd, [95] the appellant was held to be able to discharge her onus of proof that a particular event occurred by relying on evidence of the probabilities of it having occurred, in circumstances in which there was no evidence which established the precise facts about it.
BHP relied upon the decision in Amaca Pty Ltd v Ellis [96] for the proposition that, even if Mr Gillespie's evidence concerning average figures was admissible, such averages "could not simply be used as the basis for findings to the requisite standard of proof in Mr Dunning's individual case". [97] However, this decision does not in my opinion assist BHP.
The High Court pointed out in that case that where evidence of a general nature, not related to the specific plaintiff, is given, the court must first consider whether the particular plaintiff "may stand apart from the ordinary". [98] If he or she does, that may render the general evidence of no assistance. In the present case there is no reason to conclude that Mr Dunning stood in a different position to those other persons to whom Mr Gillespie's evidence related.
The High Court then pointed out that even if this hurdle is surmounted, the general evidence may not be sufficient to render the cause of injury alleged by the plaintiff to be more probable than other causes. [99] This observation was directed to a question of fact that does not arise for consideration on the present appeal. The question here is whether there was evidence capable of founding certain findings, not whether the evidence should have been accepted as proof of various facts that Mr Dunning alleged.

[27]

GROUND THREE: MR DUNNING'S EXPOSURE TO ASBESTOS FIBRES

If, as I have found in addressing Ground Two, Mr Gillespie's evidence describing certain products as "asbestos" was, when taken in conjunction with BHP's own documents, admissible, there was evidence of the use of the relevant asbestos products in the Blast Furnace Department at least up to July 1979. The issue raised by Ground Three is whether there was evidence that the use of those products continued during Mr Dunning's employment from December 1979 to March 1981, or whether the products were replaced prior to or during that period.
As this ground of appeal does not concern the admission or rejection of evidence, it can only succeed to the extent that it raises an objection "in point of law". [100] The principle invoked by Ground Three is that the question of whether there is evidence to support a factual finding (in other words whether there is material in evidence that could support a factual finding) is a question of law. [101] BHP relied upon Australian Broadcasting Tribunal v Bond, [102] where Mason CJ, after referring to authority, concluded as follows: "Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to be drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place".
BHP did not suggest that a broader principle should be applied (compare Amaba Pty Ltd v Booth). [103]
Accordingly a contention that findings are against the, even overwhelming, weight of evidence raises a question of fact only. [104] To make good this ground of appeal, BHP must show an absence of evidence reasonably capable of justifying the relevant finding of fact.
The challenge in Ground Three of the Notice of Appeal is to the findings concerning "the type and degree" of Mr Dunning's exposure to asbestos fibres in the six respects referred to in the primary judgment at [539]. [105] I address each of these below.

[29]

Asbestos hose sleeves on the taphole drill

The primary judge found that Mr Dunning was exposed to asbestos dust during the replacement of the tap drill hoses that occurred about every two weeks of his employment. Apart from the exposure during cleaning up after performance of the task, the exposure was, he held, "relatively light". [107]
BHP mounts three challenges to these findings.
First, it submits that Mr Gillespie's repeated use in evidence of the word "asbestos" to describe the cloth covering of the hoses was inadmissible. This submission should be rejected for the reasons that I gave at [102]-[104] above.
Secondly, BHP submitted that Mr Dunning did not prove that asbestos was still being used in this context when his employment commenced in December 1979, that is, that that product had not been replaced with a non-asbestos alternative by then.
Mr Gillespie gave evidence that the relevant cloth and other asbestos products were not phased out until after the time when Mr Dunning's employment ended. [108] BHP challenged Mr Gillespie's evidence but his Honour accepted it. In particular, his Honour rejected BHP's submission that Mr Gillespie's evidence could not be treated as reliably identifying when changes in products occurred because he did not have any objective factor that enabled him to fix the time when BHP commenced to seek substitutes for asbestos. His Honour considered that the "edict" of 25 July 1979 concerning asbestos [109] and the date (1985) of closure of the No 2 blast furnace provided relevant reference points. His Honour relied also on the evidence of Mr Bates and Mr Turnbull, both former employees of BHP who were called to give evidence by Mr Dunning, as to the continued use of the asbestos products beyond the time at which Mr Dunning's employment ceased.
In resolving these issues, the primary judge was considering the credit and reliability of witnesses and making findings of fact. As there was evidence capable of supporting his conclusions, there was no error of law of which BHP is entitled to complain on this appeal.
BHP's third submission under this heading is that the evidence did not justify the primary judge's findings as to the frequency and intensity of exposure in relation to this activity. There being evidence (particularly from Mr Gillespie) capable of supporting his Honour's findings, BHP's submissions in my view amount simply to an attempt to revisit the merits of his Honour's findings, a course which is not open to it on this appeal.

[40]

Endnotes

[2011] HCA 53; 246 CLR 36.
[2014] NSWDDT 3
Dust Diseases Tribunal Act 1989 (NSW), s 32.
Affidavit, 20 April 2012, par 40.
See pars 41-50.
Tcpt, 29/07/13, p 156(16)-(20).
Tcpt, 29/07/13, p 156(41)-(46).
Memorandum, 25 July 1979: Blue 2132.
Blue 2507.
Tcpt, p 164(10)-(20).
Affidavit, par 50.
Affidavit, par 51.
Howard Smith & Patrick Travel Pty Ltd v Comcare [2014] NSWCA 215 at [25].
Evidence Act 1995 (NSW), s 79.
Evidence Act 1995 (NSW), s 78.
NH&MRC, "Occupational health guide - Threshold Limit Values" (1980), p 2.
[2011] EWCA Civ 1242 at [36].
[2011] UKSC 17; [2011] 1 WLR 1003 at [80] (Lord Mance) and [111]-[125] (Lord Dyson).
Baker at [124].
Dunning v BHP Billiton Limited [2014] NSWDDT 3 at [724].
That being the issue in Baker.
[1980] HCA 12; 146 CLR 40 at 47-48.
Emphasis added.
See Mason J at 46, quoting Lord Reid in The
Tribunal at [734].
Heading before [738].
Cf Lustre Hosiery Ltd v York [1935] HCA 71; 54 CLR 134.
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.
[1990] HCA 33; 170 CLR 321 at 355-356.
Section 5(1)(f).
Section 5(1)(h).
Bond at 355-356 (citations omitted).
[1959] HCA 8; 101 CLR 298 at 305 (Dixon CJ).
Appellant's Rule 51.36(2) statement, par 3.
[2010] NSWCA 344; [2011] Aust Torts Rep 82-079.
At [23].
"Asbestos Survey with Recommendations for Substitutes and Use Controls" (July 1979).
Azzopardi at 156E (emphasis in original).
Report, p 3.
Report, p 1.
[2014] NSWDDT 3.
Transcript p 166.
Ibid.
Judgment [550].
Ibid.
Judgment [551].
Judgment [552].
Judgment [555].
Judgment [590].
Judgment [589].
Judgment [624].
Judgment [639].
Judgment [647].
Judgment [650].
Judgment [740]-[745].
Judgment [749]-[752].
Judgment [753].
Judgment [757].
Judgment [758]-[760].
Judgment [761].
Judgment [762]-[763],
Judgment [770].
See section 3B(1)(b).
[1980] HCA 12; 146 CLR 40 at 47-48.
Judgment [724].
Judgment [727].
Judgment [737].
Judgment [747].
[2002] HCA 35; 211 CLR 317 at [99].
Transcript p 16.
See [73]-[80] above.
At [4].
Transcript p 3.
[2007] HCA 20; 81 ALJR 1021 at [6].
See [41] above.
Written submissions, [31].
ibid [32].
At [15].
At [5].
Written submissions, [23].
ibid [22].
Judgment [737].
Judgment [555] quoted in [64] above.
Judgment [552].
Transcript p 207.
See [56] and [60] above.
[2011] HCA 36; 244 CLR 352 at [48].
[2014] NSWCA 215.
At [28].
Judgment [552]-[555].
Judgment [555].
See [56] above.
[1971] 1 NSWLR 713 at 721.
9th Australian ed 2013, LexisNexis Butterworths) at [3240].
[2012] HCA 5; 246 CLR 182 at [34].
[2010] HCA 5; 240 CLR 111 at [62].
Appellant's UCPR 51.36(2) statement, [11].
At [62].
At [64].
See [50] above.
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [91].
[1990] HCA 33; 170 CLR 321 at 356.
[2010] NSWCA 344 at [21]-[26] per Basten JA.
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155 per Glass JA.
See [65] above.
See [50] above.
Judgment [603].
For example, his first affidavit at [50]-[52] and transcript p 232.
See [9] above.
Judgment [624].
Appellant's statement pursuant to UCPR 51.36(2) at [35].
See [54] above.
ibid paragraph [37].
Judgment [770]; see [81] above.
Judgment [746].
Judgment [746]-[752].
Statement [17].
Judgment [753].
Appellant's UCPR 51.36(2) statement, [67]
Transcript pp 224-5.
Transcript p 183.
Transcript pp 442-3.
Judgment [761].
Judgment [762]-[763]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 March 2015

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