BI (Contracting) Pty Limited v University of Adelaide [2008] NSWCA 210 | Case summary

BI (Contracting) Pty Limited v University of Adelaide [2008] NSWCA 210 | Case summary | Zoe

[20]

14 A party dissatisfied with a decision of the Tribunal on a question as to the admission of evidence has a right of appeal under s 32(1) of the DDT Act. This ground complains of error in the admission of the evidence that is "referred to" in the nominated paragraphs of the judgment. Some paragraphs are a summary of the effect of some part of the witnesses' evidence. Mr Parker did not take the Court to the evidence or to any objection to the admission of any of the material tendered under s 25(3). He submitted that the matter had been approached as one of broad principle. His written submissions at the trial addressed the matter in this way: "5.17 A number of other witnesses in earlier proceedings whose evidence was tendered by the University pursuant to section 25(3) of the DDT Act were also unable to give first-hand evidence of the state of expert medical opinion in 1961, and their evidence should likewise be rejected as inadmissible. This applies to: 5.17.1 Geoffrey Pickford who was only certified in industrial hygiene in 1984 having sat the American Board of Industrial Hygiene examination in 1984, 5.17.2 Alan Rogers who was not in the occupational hygiene industry until the 1970's, 5.17.3 James Leigh who also was not involved in the occupational physician industry until about 1990, 5.17.4 David Kilpatrick who first became involved with the asbestos hazard industry as part of his work in 1977." (Black 329.P-330.D) 15 The ruling that is challenged is recorded at [53] of the judgment. This ruling would appear to have been made in response to the above submissions and the objection, which is set out below (the global objection) (Black 12.T-13.L): "MR PARKER: The difficulty with that, your Honour, is that Professor Henderson by his own admission in the report in 1961 was a first-year medical student. He is not in a position to give evidence about what the state of the medical art was in 1961. HIS HONOUR: Just as well we do not need experts to give evidence as to the state of the art in 1920. There must be ways of doing it if you are not alive at the time. MR PARKER: Yes, there are, you just tender the documents. You tender the articles or whatever they are which demonstrate what was known. Your Honour, it is a significant matter because your Honour will no doubt seen in many cases that people like the late Professor Ferguson, the late Professor Gandevia, Dr McNulty, and other persons have given evidence on the question of the state of the art in the 1960s. But, your Honour, that is legitimate because they were there. It is not expert evidence at all when one thinks about it. The relevant evidence is, this is how an article was understood in 1960 or if somebody had rung me up as an expert practising in the field in 1960 and said, what shall I do about this level of exposure to asbestos what would my answer have been? That is direct evidence from the witness as to what the witness knew and there is a lot of material of that character in 25(3) material from the gentlemen that I have mentioned and there is also material such as proceedings in the 1968 pneumoconiosis conference. That evidence indicates very clearly, and in our submission it is the best evidence, because it is contemporaneous. It is not affected by people's perceptions years after the event. It is contemporaneous evidence of the way matters are understood. So it is perfectly possible to prove the state of knowledge but you cannot do it by calling someone who was not relevantly practising at the time and saying, why do you not go and read all these articles and tell me what you think people should have thought and when one analyses it, it is not entirely clear, with great respect to the professor, but when one analyses it, it seems to us that that is the sort of evidence that he has given." (Emphasis added.) 16 Before turning to the ruling, it is appropriate to note his Honour's record of the approach taken to evidentiary issues which arose in the course of the trial (Red 43.X-44.P): "[12] In the course of the conduct of these proceedings numerous evidentiary questions arose. Senior counsel for both parties took the position that, rather than dealing definitively with each tender as it arose, I could receive all the evidence and make my final ruling on it during the course of these reasons.

[21]

[13] In the end, the contentious evidence really finished up in two categories. There was evidence that was allowed in, but without prejudice to the right of either party to make appropriate objections and deal with it in the course of submissions and then there was evidence on the voir dire which, strictly speaking, would need to be dealt with differently. The only reason this needs to be expressed in these reasons is so that it is made clear that whichever category the evidence fell into, it was not intended to be treated in any different way to the other. All the contentious evidence, whether received subject to the right of the parties to deal with its admissibility in the course of submissions or whether received on the voir dire, was intended to be dealt with on the basis that the final disposition of that evidence would rest on my rulings which would be made during the course of these reasons." 17 The ruling is as follows: "[53] Mr Parker SC objected to evidence of witnesses on this issue unless they were witnesses practising in the field at the time Professor Rowley was exposed and could, by reason of that fact, give evidence of the state of knowledge in 1961 or of what an appropriate expert might advise as to safety at that time. I do not think this submission is right. It would mean that in the case of an event at a time when no practising expert was alive, a person who later became an expert could not give evidence of an earlier state of knowledge based on his learning. I think this is historical material about which these persons may give evidence - see, for example, Jones v Scully [2002] FCA 1080 [82-5]." (Red 64.M-V) 18 On the appeal, Mr Parker submitted that his Honour's reliance on Jones v Scully [2002] FCA 1080 was misplaced. Hely J had been concerned in that case with the admissibility of video recordings and books to prove historical facts in proceedings in which it was contended that an individual had engaged in unlawful conduct by distributing anti-Semitic literature contrary to the Racial Discrimination Act 1975 (Cth). The discussion of the admissibility of historical evidence is at 264-265 [82] - [85]. His Honour referred to the dictum of Dixon J in Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 196 that the courts may use the general facts of history as ascertained from the writings of serious historians and employ the common knowledge of educated persons. The material in Jones was polemical in nature and was not admitted. 19 Mr Parker referred to Bellevue Crescent Pty Ltd v Marland Holdings Pty Ltd (1998) 43 NSWLR 364 in support of his contention. That case was concerned with the reservation of a laneway. Young J rejected the evidence of historians concerning traffic in George Street in the 19th Century. His Honour concluded that, while courts may obtain the basal facts of history, such as when a particular war broke out or other matters of record from a reputable history, the analysis of why things happened or how people behaved is not a matter to be proved by the evidence of people who were not present at the time. 20 The issue here is not proof of the general facts of history, but the state of medical knowledge of the dangers of the inhalation of asbestos dust and fibre that was available to informed industry participants (which BIC conceded it was) in 1961. An inference may be drawn from the state of knowledge in this respect as to the foreseeability of the risk of injury to a person exposed to asbestos dust and fibre, a consideration that is relevant to the inquiry at the level of duty and breach.

[25]

This discussion was directed to a different issue. However, the point that Sir Richard makes concerning "the librarian function" of the expert seems to me to be relevant in the present context. The expert's study and training equips them to undertake a literature review and to assist the court to understand the significance of what is contained in it. The expert is available to be cross-examined. In Mr Parker's submission, an expert who was not in practice in the field at the date of the publication of an article is not qualified to express an opinion about the authority of the article or the standing of the journal at the date of publication. I do not accept that is so. An opinion that a journal was authoritative in 1961 does not involve conjecture about what people believed about it in 1961, but is likely to be an inference drawn from the quality of the articles appearing in the journal over a period and the references to it in other publications within the field of speciality. In determining whether publication of an article in a journal is likely to have informed the knowledge of informed industry participants in 1961, the Court may be assisted by expert opinion concerning the authority of the publication. 24 In Trevorrow v State of South Australia (No 5) [2007] SASC 285; 98 SASR 136 Gray J gave consideration to a similar question in the context of a claim for damages, following the unlawful retention of an infant Aboriginal child after his admission to hospital in 1957. His Honour considered the admissibility of the evidence of Ms Van Hooff, a psychologist, who in the course of undergraduate and doctoral studies had undertaken extensive literature reviews of the learning associated with childhood trauma (at 283 [690] - 285 [705]). The evidence was led to establish that at the time of the plaintiff's separation from his natural family, there were published and well-publicised texts identifying the risks associated with such a separation (at [690]). In that case, Ms Van Hooff gave evidence on the voir dire of the tasks involved in searching various databases and undertaking a review of the abstracts of professional publications. The evidence was admitted. His Honour considered the task of identifying relevant and available literature from 50 years ago on matters within the discipline of medicine and psychology gave rise to the need for expertise.

[27]

26 In my opinion, it was not an error to hold that experts who were not qualified in 1961 were able to give evidence of the state of knowledge within their speciality in 1961, based upon a review of the literature as it stood then. Dr Leigh's evidence, summarised at [98], was not inadmissible on the basis identified in the global objection. No objection appears to have been taken to those parts of the s 25(3) material that were said to contain inadmissible speculation about what informed industry participants "should have thought" or for some other reason. It is necessary to give consideration to the evidence that is the subject of this ground. 27 The first paragraphs identified in the ground are [60] and [61]. These relate to the evidence of Gordon Stewart. Mr Stewart worked with the Victorian Department of Health as an industrial hygiene officer in the years before 1961 and much of his evidence was of his observations and understanding at that time. The paragraphs of the judgment which concern Mr Stewart's evidence are set out below: "[60] By 1961, Mr Stewart was of the view that: · if dusts could be seen in the atmosphere of a workplace, that was an indication it could be a risk to persons exposed (Exhibit CX 84, 89.30, 93.29); · the absence of visible dust did not necessarily indicate there was no risk (Exhibit CX 84, 93.30); · asbestos was an extremely dangerous dust; its effects could be progressive and lethal (Exhibit CX84, 91.23). He did acknowledge that his view may not have been correct (Exhibit CX 84, 107.39); · if dust exceeded the standards, then ameliorating responses were required. If the dust could be life threatening, the exposure had to be minimised and this applied particularly to dusts such as asbestos that could be cumulative in their effect (Exhibit CX 84, 93.47); · if a workplace did not meet the criteria for exposure level it was unsatisfactory whatever the length of time that failure to meet the criteria lasted (Exhibit CX 84, 102.32); · in circumstances similar to those prevailing when Professor Rowley was exposed, Mr Stewart, if he had the authority, would have instructed that the site be cleared of persons not directly involved in the operation (Exhibit CX 84, 104.39). He gave evidence to similar effect at Exhibit CX 84, T. 117.10-31); · it was never the view that there was a body of thought that asbestos was not dangerous to a worker so long as he was not exposed to high levels of dust over a long period of time (Exhibit CX 84, 107.03); · the standard used in the 1945 Regulations was not a standard that would guarantee that one would not get sick (T. 130.06). [61] Before 1961, Mr Stewart did not have a view as to what level of exposure would have eliminated health risks from asbestos. He agreed that he did not have the scientific expertise to form an opinion as to what was a safe level of exposure. The conclusion put to him does not necessarily follow and that is that as he did not have the expertise to form an opinion as to a safe level of exposure, therefore, he could not form an opinion that a particular level, for example, the Dreessen level, was not safe. It is consistent that Mr Stewart or anybody could have an opinion that exposure above a particular level was not safe, but have no idea at what level exposure was safe. This is because exposure above a particular level may have been determined to be not safe, yet the learning may have been ignorant or undecided as to exposure below that level." (Red 67.M-69.H) 28 Mr Stewart graduated in science from the Royal Melbourne Institute of Technology in 1952. He took up employment as a Scientific Officer, Industrial Hygiene, with the Victorian Department of Health in that year and remained in that employment until November 1965.

[28]

29 Mr Stewart's evidence in the principal proceedings included the following: "Q. Mr Stewart, the question I asked you was basically this, in the mid to late 1950s what appreciation if any did you have as to asbestos and the asbestos fibre. A. The appreciation I had was asbestos along with silica was capable of producing a very serious pneumoconiosis if inhaled, that it was an extremely dangerous dust, that exposure to the dust would produce a condition of asbestosis which was one that was progressive in that it would continue to develop with the cessation of exposure and that the outcomes from asbestosis if it reached any formidable degree were very likely to be lethal and in many cases were. Q. How did you obtain that appreciation that you have just spoken about. A. That appreciation was by contact with Dr Thomas, who was the dust diseases specialist there and by observation of the patients that he brought in and their condition and I personally came to believe that asbestos dust if inhaled into the lungs was extremely dangerous and had potential to produce a crippling and even fatal disease. Q. In your work in the Victorian department did you operate in relation to dusts, gases, fumes and mists under any regulations. A. Yes, the 1945 Dust Fumes Mists et cetera Regulations were the applicable regulations as modified from time to time. … Q. Just before I ask you what is written there, were you familiar or aware at the time you worked at the department between 1952 and the late 1950's of a schedule to these. A. Indeed yes. Q. What schedule was that. A. Well, schedule 2 was the principal one and listed the limits of exposure for a range of substances which the department considered if they got into the workplace or the air generally were capable of producing damage to the lung. (Blue 1977.I-V) … Q. Was that during the period from, let us say, 1952 to the late 1950s. A. That was always a requirement, that you hold yourself ready to engage in such discussions and to make such recommendations if you were involved in that particular case. Q. These questions, I want to emphasise, are just asked about dust generally in the workplace. What hygiene principles would you deem appropriate where you made observations of dust in the workplace, in the 1950s. A. Depending on the toxic nature of the dust, the presence of visible dust in the atmosphere was always taken as an index that things are not satisfactory and a risk could reasonably exist. The absence of visible dust as a corollary did not necessarily indicate that there was no risk but it certainly - the obverse of that was that if the dust was visible in those materials which were pneumoconiosis producing then that was an indication that a risk existed for the persons exposed. (Blue 1979.L-P) 30 His Honour identified Mr Stewart's sources of knowledge as at 1961 (at [58]): · the 1945 Victorian Harmful Gasses, Vapours, Fumes and Mists, Smokes and Dusts Regulations; · the 1956 Declaration under the Victorian Health Act of 1928; · article by Dr Thomas in The Age newspaper in 1956 and a report by Dr Thomas in 1957; · generally reading books and industrial health papers though the literature he had read by 1961 on matters related to the Dreessen standard was limited; · regular discussions with scientific staff, inspectors and medical officers and formal discussions with the department where he worked; · visits to factories where dusts were present even though such may not have been directed to asbestos dust; · on his observations on his visits to factories where dusts were present, reporting on those observations, taking laboratory measurements for dust counts of dust in factories he had visited; · communications with people working in other departments in other States. (Red 66.D-67.D) 31 The reference to the report in The Age newspaper was to an article published in 1956 titled, "Dust becoming bigger hazard in industry more work is affected". Mr Stewart was aware of the article at the time of its publication, it related directly to his activities and it had been broadly discussed. (Blue 1983.N) The article reinforced a view that he already held as to the potential of inhaled asbestos dust to cause harm to the lungs. (Blue 1983.P)

[30]

33 In the written submissions filed on BIC's behalf it was said that the evidence of Mr Stewart referred to at [54]-[61] should have been rejected. (Orange 28.E) This, it will be noted, is a submission in wider terms than the formulation of Ground 1. BIC's written submission continues: "As the evidence was not expert evidence, it was not a question of establishing Mr Stewart's 'qualifications' as an expert. The question was whether Mr Stewart was a person who would have been expressing opinions prior to 1961 on behalf of the Victorian Department of Health as to risks associated with particular levels of asbestos exposure. On his own evidence, he was not. The person in the Department who would have expressed any such opinions was Dr Thomas, the Director, or the medical officers. Mr Stewart's job at the time was no more than to evaluate compliance of particular workplaces with guidelines which had been laid down by others. Mr Stewart had not even read the relevant scientific literature on risks associated with asbestos before 1961. Thus his evidence as to what he claimed he would have done had he been in charge of the building site in Adelaide in 1961 was inadmissible as lacking any foundation." (Orange 28.L-P) 34 The reference in the concluding sentence to Mr Stewart's evidence of what he would have done had he been in charge of the building site is not identified. It may be a reference to the following evidence given by Mr Stewart in the principal proceedings: "Q. Having regard to what you learned and appreciated in your work up until you left the department to go to the National Testing Laboratories, if you had entered premises where spraying of asbestos was taking place, an area described by those who saw this area as very dusty, that there was dust everywhere to a greater or lesser extent, clouds of dust everywhere, that there was no attempt to separate the dusty process from what was going on and 15 to 20 people were working on that construction site in those circumstances, what would you have done? A. You have given me now authority to do something, I would've - if I had the authority I would've instructed them to clear the site of persons not directly involved in the operation. Q. When you say 'not directly involved' what do you mean? A. … The nozzle operator and the machine operator and the clean-up man, that's the three guys that are essential to that process to remain with appropriate respiratory protection and everybody else to be removed from the area affected by any dust or mist that was created by the process." (Blue 1990.P-U) 35 At trial, Mr Parker challenged Mr Stewart's qualifications. (Black 99.N) His Honour rejected the challenge and his ruling in this respect is not the subject of appeal. At trial, Mr Parker's alternative basis for objecting to the tender of Mr Stewart's evidence under s 25(3) was that, as it had been given orally, it did not contain Mr Stewart's acknowledgment that he was bound by the expert witness code. (Black 97.T-99.E) This ground is not the subject of appeal. It is a basis of objection that appears to be inconsistent with the position adopted by BIC in the first instance of the quote at [33] above. 36 In Mr Parker's written submissions at trial it was acknowledged that unlike Professor Henderson and the other witnesses, Mr Stewart had graduated and was working in 1961. It was submitted that: "A careful analysis of Mr Stewart's evidence demonstrates that he was not, however, at any time prior to 1961, part of the group of people who collectively represented Australian expert scientific opinion on the dangers of asbestos. If anyone within the Department of Health was a member of that group, it was Dr Thomas who had medical qualifications and was therefore in a position, as Mr Stewart was not, to evaluate the scientific literature and other evidence in terms of risk." (Black 330.E-J) 37 The fact that Mr Stewart may not have been a person authorised on behalf of the Victorian Department of Health to express opinions about the risk associated with asbestos does not go to admissibility. Mr Stewart's evidence of his understanding in the period before 1961 of the risks posed by dust in the workplace atmosphere and of the particular risks associated with the inhalation of asbestos dust was direct evidence from which, with other evidence, it was open to draw a conclusion about the state of knowledge of informed industry participants of the danger of asbestos dust and fibre.

[32]

40 I will set out the evidence that is the subject of complaint and the preceding paragraph in order to make it intelligible: "[75] Professor Henderson, in giving evidence in Professor Rowley's case, apparently agreed with Mr Rundle, then counsel for the University, that 5 mppcf was a safe level of exposure (Exhibit CX 83, T.19). [76] (a) However, there was an ambiguity in the evidence and it was not clarified (Exhibit CX 83.T.19). The following exchange occurred. Q. But as you say it was regarded though for some years as the, for want of a better word, a safe level. A. It was regarded as an exposure standard at the time. Q. Viewed that it was safe but unfortunately it has not worked out that way. A. No. Q. When you say no, you are agreeing with me. A. It hasn't worked out that way, no, it hasn't. I agree with you. (b) The premise in the first question was not justified. Professor Henderson had not said that the level was regarded as a safe one. That appears to be reflected in his answer to the question. The next question asserts the viewing of the standard as safe and then adds another subject matter to the question. The answer no is probably meant to be yes . That is, Professor Henderson was agreeing with what had been put to him and that seems evident from his next answer. It is a problem often raised with an answer in the negative when the question contained a negative. However, the cross-examiner in suggesting to Professor Henderson that he was agreeing with him has not made it clear whether the agreement is with the first part of the question, the second part or both parts. The fact that he was trying to clarify a negative upon a negative suggests that the last question was directed to the second part of the previous question. The answer to the last question seems to be founded on that too. I take it that Professor Henderson's agreement with the cross-examiner was that the standard had not worked out to be safe, not that it was viewed as safe." 41 Professor Henderson's evidence, that 5 mppfc had not worked out to be a safe exposure standard, would appear to be an opinion that he was qualified to express. His earlier agreement with the cross-examiner that it had been regarded as an exposure standard at the time may not have been an opinion which he was qualified to give in chief. However, in the absence of objection to its reception under s 25(3), it is not necessary to consider the question further.

[35]

46 The paragraphs identified in the ground are set out below: "[98] He referred to the Dreessen paper as having some cases of asbestosis with an exposure of less than 5 mppcf (Exhibit CX 69, 152Q). He referred also to a paper in 1934 by Wood & Gloyne with three reported cases of asbestosis with less than a year of exposure (Exhibit CX 69, 162Q). He noted that the 1949 Merewether paper reported a lung cancer risk with asbestosis (Exhibit CX 69, 165G). He commented that the 1955 Doll paper reported three cases of lung cancer without asbestosis (Exhibit CS 69, 165L). [99] At Exhibit CX 69, 189P, Dr Leigh was asked a lengthy question about the Dreessen paper and whether, on the information available in it, an end-user might be seen to be at risk in 1938 of contracting asbestosis. He gave a lengthy answer, not entirely responsive, but it does seem to imply that there was a risk. [100] Asbestos has been recognised as a toxic substance since the 19th century (Exhibit CX69, 177P). As at 1947, it was a dictum in the field of occupational hygiene to have the lowest possible exposure to a toxic substance (Exhibit CX 69, 179W). [101] The risk of mesothelioma should have been known in 1960 (Exhibit CX 69, 197P). The requirement for dust control to reduce it should have been known then (Exhibit CX 69, 197T). I am not really implying there how much reduction for mesothelioma would be required because the quantitative aspects of that were only worked out subsequently . (Exhibit CX 69, 197Q). The requirement for dust control and respiratory protection to reduce the risk of mesothelioma should have been known in 1960 (Exhibit CX 69, 197T). This should have been known to executives of companies, such as James Hardie, but I'm not suggesting they should have known that it should be reduced to nothing . (Exhibit CX 69, 197X). [102] The following questions and answers appeared at Exhibit CX 69, 199D-G). Q. Does it come to this that you are of opinion that the executives of my client company ought reasonably to have given the Wagner paper some consideration and ought reasonably to have awaited developments in the profession. A. Yes, that's reasonable. Q. You do not suggest therefore, that they ought to upon their receipt of the paper, accepted what was is in it as gospel and implemented alterations within their enterprise in response to it. A. Not immediately on receipt of the paper. [103] At T.203C-E, the following question and answer appeared. Q. Would you agree with this proposition, 'The existence of mesothelioma as a specific entity was not accepted by the world's leading cancer authority Professor Rupert Willis nor was its relationship to asbestos appreciated prior to the mid 1960s with the exception of a few deeply involved experts. A. By mid 1960 - by 1960, if you put 1960 there rather than mid 1960s.'" (Red 80.M - 82.L) 47 The reference to Dr Leigh's non-responsive answer at [99] is to an answer to a question in which the cross-examiner sought to obtain his agreement that a manufacturer of asbestos cement sheeting in 1938, who had read the Dreessen article, would have assessed that there was little risk of contracting asbestosis to a person cutting up asbestos fibre sheets. Dr Leigh responded by conjecturing about the inquiries he would have made and the inferences he would have drawn in such a circumstance. (Blue 1349.O - 1350.E) It would have been an error to admit this part of Dr Leigh's evidence over objection. That would be so regardless of whether Dr Leigh had been in practise in 1938. 48 The evidence that his Honour referred to at [101] and [102] was given in answer to questions in cross-examination in the 1990 proceedings which sought clarification of statements made in his report. As noted, the report is not in evidence. The class of persons whom Dr Leigh considered should have known of the risks of mesothelioma in 1960 is not identified in the oral evidence. His evidence of what executives of James Hardie should have known and his acceptance of the propositions put to him by the cross-examiner ([102]) should not have been received in these proceedings over objection. Dr Leigh's acceptance as at 1960 that the existence of mesothelioma as a specific entity was not accepted by Professor Willis, the world's leading cancer authority, nor was its relationship to asbestos appreciated, with the exception of a few deeply involved experts, would seem to be an opinion based upon his review of what the literature revealed as at that date. In my view, the evidence was admissible.

[38]

Mr Rodgers did not express an opinion about the general premise of occupational hygienists in the 1940s and 1950s. His evidence that the limitations in the devices used to measure asbestos were well documented at the time, which was based upon his study of the literature, was, in my opinion, admissible. 51 The evidence that is referred to at [110] was given by Geoffrey Claude Pickford in proceedings before the Tribunal in July 1997. His report dated 21 April 1997 and his curriculum vitae were in evidence in those proceedings. Neither forms part of the evidence on the appeal. Paragraph [110] is as follows: "[110] He [Mr Pickford] agreed that if a substance was known to be dangerous or toxic in 1950, it was a basic tenet of industrial or occupational hygiene to minimise or eliminate the exposure to such a substance." (Exhibit CX 82, 194H) (Red 84.D-F) 52 In 1997 Mr Pickford was a consultant in occupational hygiene. (Blue 1711.E-F) Mr Pickford gave evidence of his employment with asbestos cement manufacturers. (Blue 1710.W) He commenced working with CSR in 1959 and he had also worked with Wunderlich and with James Hardie. The evidence that is summarised above comprised Mr Pickford's acceptance of the proposition put to him by the cross-examiner, that if a substance was known to be dangerous or toxic in 1950 it was a basic tenet of industrial or occupational hygiene to minimise or eliminate the exposure to it. (Blue 1711.G-H) Mr Pickford's evidence was not direct evidence of what he had understood to be the basic tenets of industrial or occupational hygiene in 1950. He was not then an industrial or occupational hygienist. His opinion is this respect was conjecture. It should not have been admitted over objection in these proceedings. 53 I summarise below the material in the paragraphs of the judgment to which BIC complains in this ground, which in my opinion should not have been received over objection: · A reasonably prudent employer who wished to protect his workers against asbestosis might have felt comfortable if he had adopted a standard below 5 mppcf, the Wagner article might have made some people think. ([77] Red 74.D-G) · [Dr Leigh] seemed to imply that on the information available in 1938 an end user [cutting up an asbestos sheet] might have been seen to be at risk. ([99] Red 80.V-Y) · [I]t was a dictum in the field of occupational hygiene to have the lowest possible exposure to a toxic substance. ([100] Red 81.C-E) · The risk of mesothelioma should have been known in 1960. ([101] Red 81.G-P) · In 1960 executives of a company in the business of asbestos manufacture ought reasonably to have given the Wagner paper consideration and awaited developments. ([102] Red 81.M-P)

[39]

· If a substance was known to be dangerous or toxic in 1950 it was a basic tenet of industrial or occupational hygiene to minimise or eliminate the exposure to such a substance. ([110] Red 84.D-F) 54 His Honour's findings at [121] concerning the state of the learning as to the dangers of asbestos that was available in 1961 were drawn from his analysis of the literature which was in evidence, and the evidence of the witnesses that was summarised between [54] and [110], much of which is not the subject of objection. It does not appear that any of the findings in [121] were based on the material that is the subject of this ground. 55 In Patrick Operations Ltd v Comcare [2006] NSWCA 142; 4 DDCR 234, this Court considered the scope of its powers in the event error in point of law has been established. Giles JA (with whom Ipp and Tobias JJA concurred) said this (at 249 [56]): "I remain of the view that, if it finds error in point of law, this Court cannot make for itself findings of fact necessary for disposal of the proceedings. That does not mean that, if error in point of law be established, remission to the Tribunal must always occur. The error may be such that, upon correction, this Court can dispose of the proceedings, for example if it be held that as a matter of law the appellant did not owe a duty of care to the respondent. If the findings of fact already made are sufficient for the purpose and there is no question of finding other facts, this Court can pronounce the result in law correct on those facts. If there be error in the admission or rejection of evidence, it may be that this Court concludes that the error did not affect the outcome, and accordingly the appeal is dismissed. These and like possibilities readily explain why s 32 provided that the Supreme Court 'may' remit the proceedings to the Tribunal for determination and 'may make such other order in relation to the appeal as [it] seems fit'. They warrant reading 'and' between the two limbs of s 32(2) as 'or', and the congruence with s 57(2) of the LEC Act to which Handley JA referred in Maurici v Chief Commissioner of State Revenue . But the power to make such other order in relation to the appeal as the Court sees fit does not carry with it making findings of fact." 56 I am not satisfied that his Honour was asked to rule or did rule on any of the evidence that is referred to in the nominated paragraphs of the judgment. It follows that in my view ground 1, which complains of error in admitting the evidence, should be rejected. To the extent that his Honour referred to evidence that should not have been admitted, I am satisfied in any event that the material did not affect his findings.

[40]

The Victorian statutory instruments 57 In his Honour's review of the state of knowledge in 1961 of the health risks associated with asbestos, reference was made to the Harmful Gases, Vapours, Fumes, Mists, Smokes and Dusts Regulation 1945 (Vic) (the Regulation), which was published in the Gazette on 7 February 1945. The Regulation provided that an occupier of premises should not allow concentrations in excess of specified amounts in the air in circumstances in which it was likely to be inhaled by persons in the vicinity of the place where the process was being carried on. In the case of asbestos, the specified amount was 5 mppcf. His Honour also had regard to the Declaration of Certain Trades to be Dangerous Trades within the Health Act 1928 (Vic), which was dated 11 July 1956. This declared the trade of asbestos lagging or spraying to be one which, unless preventative measures were adopted, may be dangerous to the health of persons employed in it. 58 Ground 2 complains that it was an error to admit the Victorian statutory instruments. In the written submissions filed on BIC's behalf, it was contended that the circumstance that an occupation was considered to be a "dangerous trade" because it might be dangerous to the health of persons employed in it was not relevant to the determination of the state of medical knowledge bearing on the perceived risk to a person such as Professor Rowley. The Regulation appears to have been tendered in the course of the re-examination of Mr Stewart. (Black 141.R) The tender was not the subject of objection. It is not clear that the Tribunal was called upon to rule on the admissibility of either of the Victorian statutory instruments. In BIC's written submissions at trial their relevance was questioned but it was not said that they had been wrongly admitted. (Black 328.M-329.B) This is enough to dispose of the ground. However, since the point was not taken by the University in its written submissions filed after the Amended Notice of Appeal, it is appropriate to address the substance of the complaint that is now made.

[86]

[134] In all the circumstances, I am satisfied that BIC owed Professor Rowley a duty of care." (Red 49.O - 57.Q) 63 In my opinion, it is clear from the judgment, read as a whole, that his Honour found that injury to a person in the circumstances of Professor Rowley had been foreseeable by BIC in 1961. His Honour considered that foreseeability of risk of injury in 1961 to a bystander exposed to asbestos dust for a period of short duration was the central issue in the proceedings. This is how he put the matter at the commencement of his reasons: [10] It is apparent that these proceedings give rise to numerous issues. The issues concern the state of knowledge as to the health risks associated with asbestos in 1961 and also numerous evidentiary issues. [11] In a crude sense, the issue may be described as being whether approximately five to ten minutes of exposure to asbestos dust and fibre during the course of a spraying operation in 1961 was enough: · to give rise to a duty of care, the content of which required the University and BIC to take reasonable steps to prevent Professor Rowley being harmfully exposed to asbestos dust and fibre; · if the answer to the above point is affirmative, to give rise to a breach of that duty;" (Red 43.H-U) 64 The entire thrust of his Honour's analysis of Seltsam Pty Ltd v McNeill [2006] NSWCA 158; (2007) 4 DDCR 1 was the distinction, in the context of foreseeability of risk of injury, between Professor Rowley, a bystander exposed for a short period to high concentrations of asbestos (finding at [36]) in an industrial setting from the circumstances of the respondent in McNeill, an end-user of asbestos cement sheeting. After listing the points of distinction, his Honour went on to state ([119] Red 88.J-K): "The learning up to 1961 must be looked at in the circumstances of Professor Rowley's exposure." In the context, this can only be a reference to what the learning as at 1961 said of the risk of injury to a person exposed to high concentration of asbestos dust for a period of short duration. His Honour's reasons at [129] - [134] make plain that he was satisfied that injury to a person in Professor Rowley's position was reasonably foreseeable to BIC in 1961. 65 His Honour reviewed the evidence relevant to the state of knowledge of informed industry participants in 1961 at [38] - [113]. His findings based on this material are set out at [121]. Those in sub pars (a), (e), (f), (g), (h), (i) and (p) were of particular significance to his conclusion as to the foreseeability by BIC in 1961 of risk of injury to a person in Professor Rowley's position. He explained his reason for rejecting BIC's submission that foreseeability of risk of injury in 1961 was confined to persons subject to prolonged and heavy exposure to asbestos fibre at [129]. His comment that there were other risks at different levels of certainty is pertinent to an understanding of his reasons for concluding, in the context of the existence of a duty of care, that risk of injury was foreseeable. In my opinion, his Honour's reasons fulfilled each of the requirements of an adequate statement of reasons that were set out by Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444. 66 Central to this appeal is the contention that the finding of foreseeability of risk of injury was not open. BIC submitted that the finding could not be sustained on the evidence, for reasons which substantially mirror those given by this Court McNeill. 67 The respondent in McNeill was diagnosed with mesothelioma in January 2005. In 1961 he had fixed asbestos cement sheeting to the roof of a rumpus room at his sister's home. He had worked on this task over two or three days, on each occasion for periods between two and four hours. He cut the asbestos sheets with fibro cutters and a saw. He then drilled holes in them with a hand drill and screwed them onto a wooden frame. At the end of each day's work, he picked-up broken pieces of sheeting and put them in a rubbish bin. The sheets were dusty (at 7, [13]). 68 Bryson JA (Tobias JA concurring) reviewed the evidence of the known risks of asbestos, concluding (at 33, [101]): "The reasons which the trial judge gave at [98] and [99] and the course of the judgment generally show that the trial judge conflated all persons exposed to risks of injury associated with inhalation of asbestos dust and fibres, and used the results of this consideration to reach a conclusion about the reasonable foreseeability of a risk of injury to the respondent. In my opinion this was an error in point of law, because the material which the trial judge considered in reaching this conclusion does not provide a basis for concluding that a risk of injury was reasonably foreseeable in relation to a person whose exposure to asbestos was of the extremely low intensity of the respondent's exposure. Almost all the references to exposure relate to occupational exposure and to continuing situations of exposure, and while they vary greatly in periods of time and intensity, they were all of a completely different and much greater order of intensity than the exposure of the respondent. It is only in the last of the publications reviewed by the trial judge, those of JC Wagner and others in 1959 and 1960, that there was any reference to sufferers from asbestosis or carcinoma other than persons occupationally exposed to asbestos. The conclusion that risk of injury to the respondent, or to a person in the respondent's position, was reasonably foreseeable is not a conclusion which could be reached by reasonable persons finding the facts, on the material which the trial judge considered. The concessions attributed to Mr Pickford do not add anything of substance: most of them have little connection with foreseeability in relation to the class of which the respondent is a member. Indeed, unless the case of the respondent and persons in his circumstances is conflated with cases of altogether different intensity of exposure, there is not in my opinion any material upon which, avoiding hindsight and judging matters from the point of view of the information of which the appellant ought to have been aware in 1961, the trial judge could find that there was any exposure to risk at all."

[87]

Bryson JA also observed at 18, [40]: "When addressing foreseeability and the existence of a duty of care it is in my opinion an error, and an error of law, to treat the respondent as a member of any class more highly exposed to risk than a class described at a high level of abstraction as home handymen and other low-intensity casual end users who worked on asbestos cement products as handymen, not in an industrial or other controlled situation, not in the course of employment or any like relationship and not for extended periods. The respondent's exposure in several periods of work which may have totalled in the order of 10 or 12 hours make his exposure very low, even for what is characteristic of this class. As a class, these home handymen had characteristically far less exposure to risk, for a far shorter time, than building or other industrial workers who handle and shape asbestos cement sheeting in employment situations. Publicly available information should be considered with care before deciding that it has relevance to the reasonable foreseeability of risk to a class of persons to which the respondent belonged." 69 Handley JA agreed with Bryson JA that the evidence in McNeill was not capable of establishing that there was in 1961 a foreseeable risk of injury to a casual, one off, user of asbestos cement sheeting (at 4, [6]). 70 In written submissions, BIC put that "[McNeill] was not distinguishable and his Honour was required to follow that approach". (Orange 24.N) In McNeill the relationship between the plaintiff and defendant was not one within a category that gave rise to a duty of care. It was necessary to consider at a level of abstraction the class of persons to whom risk of injury was foreseeable. The class in McNeill were the end users of a manufactured product, asbestos cement sheeting. The class in this case were bystanders present at a building site at which a process of asbestos spraying was being undertaken. (The University submitted that the relationship between BIC and Professor Rowley was that of "occupier/invitee or sub-licensee - occupier/invitee and giving rise to a recognised duty of care". (Black 347.L-M). The case was not pleaded against BIC as occupier.) His Honour is not said to have erred in his statement of the principles in McNeill. He was not required to arrive at the same conclusion. This is because in 1961 foreseeability of risk of injury to a person inhaling asbestos dust and fibre which was being sprayed into the atmosphere may be thought to have raised different considerations from the foreseeability of risk of injury to home handymen using asbestos cement sheeting.

[89]

Accepting his Honour's finding that Professor Rowley's exposure exceeded 5 mppcf, it was submitted that it was a level of exposure well below the level under the Schedule, when averaged out over a working week. (Orange 30.D-F) 72 Dr McNulty, Professor Ferguson, Dr Joseph and Dr Gandevia had each been in practice in 1961 in industrial health, specialising in the effects of asbestos. In written submissions, Mr Parker summarised their evidence as being to the effect that, in the early 1960s, there was no concern with transient exposures, including exposures which would have been significantly heavier than Professor Rowley's. Dr McNulty visited the Crocidolite Mine at Wittenoom, Western Australia, on a number of occasions in the early 1960s and, despite the known presence of asbestos at significant levels in the environment, he took no precautions against exposure. This was relied on as powerful evidence of the state of knowledge in 1961 that was not contaminated by hindsight. 73 His Honour was mindful of Dr McNulty's evidence that he had taken no precautions on his visits to Wittenoom. (Red 69.R-U) His Honour also noted Dr McNulty's evidence that in the late 1950's, as a principle, one avoided any unwarranted or unnecessary exposure to that sort of dust [asbestos fibre]. (Red 70.I-K) His Honour went on to say this of Dr McNulty's evidence: "[70] In 1961, he would have been concerned about persons working in clouds of asbestos dust and concerned if there were no precautions and would have recommended the principles mentioned in the previous paragraph. He wondered whether 10 minutes' exposure would be harmful, but he would not have recommended such exposure." (Red 71.E-H) … [73] Dr McNulty was referred to an article in the British Medical Journal on 30 April 1960 where asbestos dust was said to be most toxic and the amount needed to cause asbestosis was not known, so constant vigilance and new preventative measures were needed if the disease was to be abolished. Dr McNulty agreed this was all good sense in 1960. [74] In re-examination, Dr McNulty agreed that in 1961, he did not consider that a person with a brief exposure to asbestos would have incurred an asbestos related disease. I do not consider that undoes the evidence he gave in cross-examination as to risks to persons who had brief exposure. His view that such a person would not have suffered an asbestos related disease is not inconsistent with his evidence that they were at risk and at risk because a safe level of exposure was not known and there could be variations between persons exposed and it was not known and is still not known why there are such variations." (Red 71.U-72.J) 74 The appeal is confined to error of law. BIC seeks to make good this ground by demonstrating that there was no evidence to support the finding of foreseeability of risk of injury. 75 His Honour's reference to light exposures [to asbestos] being recognised in certain processes as harmful (at [121(h)]) is to the report of the Director General of Public Health of New South Wales, published in 1948. (Exhibit CX 27; Red 61.K-Q) This referred to the use of asbestos as heat insulation in a steel foundry. Asbestos was used to reduce the escape of heat from molten metal held in a crucible. The exposure was intermittent and of short duration, about five minutes at each pouring, and was only done two to three times per week. The report stated, "However, in view of the dangers associated with asbestos dust it was advised that a substitute … be used." 76 Professor Rowley visited the site in order to inspect the construction work. BIC was engaged at the site in a process that involved spraying asbestos into the atmosphere. It was a very dusty process which involved liberating pure asbestos into the air at the point at which it was removed from the bags. His Honour's findings of BIC's knowledge as an informed industry participant in 1961 included that asbestos was known to be toxic in sufficient quantities and that no level was known to be safe. There had been cases of asbestosis at levels below 5 mppcf and where the exposure was less than prolonged. By 1961, it was known that there were cases of mesothelioma attributed to relatively light exposure to asbestos. It was recognised that intermittent exposure to asbestos of short duration may be dangerous. In my opinion, it was open to the primary judge to find that it was foreseeable to BIC in 1961 that a person exposed to its asbestos spraying operation for a period of short duration was at risk of lung disease.

[94]

The University's liability for Professor Rowley's costs 81 Ground 5 of the Amended Notice of Appeal contends that it was an error to hold that the University had established an entitlement to contribution towards the $120,000 that it paid in compromise of Professor Rowley's claim for costs. This ground is the subject of his Honour's second judgment. Mr Parker relied on his written submissions in support of it. (Orange 35.R-36.L) 82 BIC acknowledged that it was common ground between the parties that the University's right of contribution extended to Professor Rowley's costs of the principal proceedings: James Hardie & Co Pty Ltd v Wyong Shire Council (2000) 48 NSWLR 679. Those costs were not formally assessed. Evidence was given to establish that the sum of $120,000 was reasonable. Mr Parker submitted that the issue was not the reasonableness of the compromise but, rather, proof that Professor Rowley was liable to his solicitors for his legal costs. In this respect, he pointed to the absence of evidence of Professor Rowley's solicitors' costs agreement or other evidence to establish the existence of a legal obligation on Professor Rowley to pay his costs. Mr Parker points to the indemnity principle as the fundamental constraint on the liability to pay costs: Wentworth v Rogers [2006] NSWCA 145; 66 NSWLR 474. 83 His Honour considered that the absence of proof of any costs agreement between Professor Rowley and his solicitors did not mean that Professor Rowley was not subject to a legally binding obligation to pay his solicitors' costs. In the absence of an agreement conforming to the requirements of the Legal Practitioners Act 1987 (NSW) (being the applicable legislation), the solicitors would have been required to have their costs assessed (s 182). The only way that Professor Rowley would not have been liable to his solicitors for their costs was if they had agreed to undertake the legal work in connection with the proceedings on his behalf for no reward. His Honour found that was such an unlikely scenario that it should be rejected. (Red 116P-V) It was acknowledged that the University had paid the sum of $120,000 to Professor Rowley's solicitors for costs. 84 In my opinion, his Honour's finding that Professor Rowley was under a legal obligation to pay his solicitors' costs upon the basis that he could reject as inherently improbable the scenario that the solicitors had an agreement to undertake Professor Rowley's legal work in connection with the proceedings for no reward, was open. His Honour's reasons are consistent with the discussion in Wentworth v Rogers per Santow JA at 483 [30] - 489 [56] and Basten JA at 508 [148] - [150]. No legal error is established.

[97]

I accept Professor Henderson's opinions on these matters." (Red 105.J-U) 87 The evidence summarised in the first bullet point is evidence given by Professor Henderson in the principal proceedings without objection. (Blue 1930.Q) It was evidence given at a time when BIC was a party to the proceedings and was represented by senior counsel. It would appear to have formed part of the s 25(3) material which Mr Parker informed his Honour was not the subject of objection. 88 The submissions did not provide the Court with any assistance as to where the balance of the evidence summarised in [154] of the judgment is to be found. 89 Two reports prepared by Professor Henderson were in evidence together with a copy of his curriculum vitae (Exhibit CX3; Blue 1796-1883). The first report, which is dated 6 June 2006, is only copied on every second page in the evidence on the appeal. The same mishap occurred at trial. However, it does appear that his Honour was supplied with a complete copy in the course of the hearing. (Black 18.R-S) This Court was not. In his second report, which is dated 3 October 2006, Professor Henderson states (Blue 1823.P): "Q 6. On the assumption that Prof. Rowley 'saw clouds of dust everywhere' while asbestos spraying was being undertaken, what does this indicate in terms of compliance with the Dreessen standard? RESPONSE : If the materials used for the spraying process comprised asbestos and water only, with no admixed cement dust, the presence of visible clouds of dust indicate that the airborne fibre concentration was almost certainly in excess of the Dreessen Standard . It has been observed (please see the attached report from the Victorian State Coroner) that for asbestos dust only, visible clouds of dust indicate that the particle count was almost certainly in excess of 5.0 mppcf. However, if the hopper for the spraying machine contained a mixture of both cement and asbestos, the situation becomes more complex, because cement dust particles could have contributed to the clouds of visible dust."

[99]

91 In cross-examination on the voir dire Professor Henderson gave this evidence: Q. One way of trying to answer the question, if it were possible, would be to conduct experiments, that is set up a spraying machine of the relevant type, position somebody in the relevant distance away and measure what the dust counts were. A. That's correct. Q. But it is not possible to do that anymore, is it. A. No because the whole spraying operation has been banned. Q. So the only way in which one can do it in a scientific way, if it is possible at all, is to look at figures that have been reported in scientific publications or tests that have been done in the past, would you agree. A. That's correct. (Black 40.H-U) … Q. May I refer to that exercise, that is, trying to identify what a particular individual's level of exposure has been to dust historically as a historical dust assessment, can I just use that terminology, and that is something that you have seen done frequently in litigation of this sort in the Tribunal, have you not. A. Yes, people have made estimates of whether the exposure levels are high, medium or very low. Q. People have gone beyond that, have they not, because you have seen reports from people in which they have gone through and attempted to actually calculate in numerical terms what the exposure level was in fibres per millimetre. A. Well yes and it's been based on the prevailing scientific evidence and I've seen people then try to calculate from the inverse square or like what the exposure levels might at varying distances away have been, but they don't take into account, as you've indicated, some of the particular or peculiar circumstances of the workplace situation where the exposure occurred. Q. At all events, you yourself have not carried out - have not produced any such report for the purpose of proceedings of this type, have you. A. Such report, what do you mean? Q. A report of that type, namely one which goes through the scientific literature and tries to make an assessment of what a person's - tries to make a numerical assessment of what a person's asbestos exposure was in the past. My point is, the question is, you have seen such reports, but you yourself have not done such a report, have you. A. Well, I have seen them and I have done that sort of thing bases on the scientific evidence. In fact, I think I've done it in this case where I suggested there was a high probability of airborne fibre concentrations in the range of 10 to 50 fibres per millimetre and that is a very conservative estimate based on the literature. Q. In order to prepare such a report one needs to be familiar with the historical literature as to the dust produced by particular processes, correct. A. That's correct. Q. You claim to have a full knowledge of that literature. A. I don't claim to have a full knowledge, I claim to have a reasonably extensive knowledge of the literature, but I can't guarantee that I have read each and every paper ever published on this subject. Q. Would you agree with me that in order to express a scientific opinion in the context of spraying, it would be necessary to have read every single available paper which had reported results for spraying. … OBJECTION - QUESTION ALLOWED A. No, I don't agree because I can't, for example, exclude the fact that there may have been some paper published in Czechoslovakia in 1935 or something like this. Every scientist does, to some extent, select the literature that he or she cites in reports and what I try to do in my various reports is to go to mainstream reports and reviews of other reports and to indicate what the likely airborne asbestos fibre concentration might have been." (Black 41.J-42.G) … "MR PARKER: Q. What I wanted to suggest to you is that it is the job of an industrial hygienist to be familiar with all of the scientific literature on this question. Although you have some familiarity with the scientific literature, do not have the sort of familiarity that an industrial hygienist would have. Do you agree with that. MR NEIL: I object. HIS HONOUR: He can answer that, I will allow it. WITNESS: It depends on the industrial hygienist, whether you are talking about a particular one or industrial hygienists generally. But again in my reports I have often taken into account the reports from industrial hygienists such as Dr Eva Francis, who has been involved in this sort of assessment. But I do not carry out the measurements myself, but I am aware in numerous scientific publications of the sort of airborne fibre concentrations or the range of them produced by particular activities." (Black 45.J-Q) 92 Professor Henderson went on to explain that he relied upon the published figures given by occupational hygienists. (Black 47.D-E) The evidence continued: "Q. That is because you recognise you do not have the scientific expertise and the familiarity with the literature to justify yourself expressing an opinion on that question. Correct. A. No, that is not correct because I am not trying to express an opinion on what Professor Rowley or any other persons. Cumulative exposure would have been in terms of fibres per millilitre years. All I am saying is that from an activity known to have generated high peak airborne fibre concentrations. It would have been roughly in this ball park to say 10 to 50 per millilitre, yes. Per millilitre without any index of cumulative exposure. All I am trying to say is the exposure would have been intense although it was brief and I have not attempted any calculation of what the quantum of Professor Rowley's cumulative exposure might have been. Q. That is because you recognise you do not have the qualifications, study and experience to express such an opinion. MR NEIL: I object. He has just answered that. HIS HONOUR: I will allow it. WITNESS: I do not entirely agree. But if he wants to say that Professor Rowley was there for say 15 minutes and exposed to an airborne fibre concentration of 100 fibres per millilitre of air, then I can do a calculation of what it might have been in fibres per millilitre years because that's a very straightforward situation. But I try not to intrude into that territory. All I tried to indicate is, spraying is known to have generated high peak airborne fibre concentrations. MR PARKER: Q. What assumption did you make in expressing the opinions in answer to questions 4 and 5 as to whether it was asbestos alone or asbestos mixed with something else. A. I didn't express an opinion, Mr Parker, because if you look further on in my report to question 6, I have indicated if the materials used for the spraying process comprised asbestos and water only with no mixed cement dust, and then I have commented on the presence of visible clouds of dust, and I have then indicated, 'however if the hopper for the spraying machine contained a mixture of both cement and asbestos the situation becomes more complex because cement dust particles could have contributed the clouds of visible dust' so I have addressed that type of situation in my report I believe." (Black 47.F-T) 93 Professor Henderson was at the date of trial the Professor of Anatomical Pathology, Flinders University of South Australia and Senior Consultant in Anatomical Pathology at the Flinders Medical Centre, South Australia. Professor Henderson has extensive experience in the study of asbestos related lung conditions. (Blue 1830 - 1883) He has authored many journal articles on topics associated with mesothelioma and he has been an invited participant at many international conventions which have addressed issues to do with this condition.

[100]

94 In BIC's submissions filed in reply it is said that Professor Henderson lacked demonstrated expertise in the disciplines which would have allowed him to express an opinion on the numerical level of exposure. (Orange 54.F-G). In written submissions at trial BIC contended that Professor Henderson's opinion of the likely level of Professor Rowley's exposure to asbestos did not comply with the requirements for opinion evidence explained by Heydon JA in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at 743 [85]. (Black 321.I-W) This objection included that Professor Henderson's opinion as to the range of airborne fibre concentration was derived from figures contained in a book authored by Dr Tweedale, which contained the results of trials undertaken by Turner & Newall and that these test results had not been independently proved. It was asserted that to the extent Professor Henderson's opinion was based upon "assumed" or "accepted" facts they ought to have been independently proved. The submissions were critical of the intellectual basis of Professor Henderson's opinion (Black 322.S-323.R) including of his ignorance of a study conducted by Alan Bell of tests undertaken at an Australian shipyard in 1968. It does not appear that BIC presses these latter Makita objections on the appeal. They are not easy to follow in the absence of detailed assistance as to the evidence to which they refer. I approach 6(a) on the basis that it contends his Honour erred in holding at [152] (Red 104.J-W) that Professor Henderson's expertise permitted him to express opinions on the matters set out in [154]. 95 Professor Henderson refers in his second report to a text, Churg, Pathology of Occupational Lung Disease, 2nd edition, which contains the conversion factors for mppcf to fibres/mL. As I understand the evidence, it is within Professor Henderson's field of specialised knowledge to know the concentration of particles of asbestos in the atmosphere that may cause lung disease. He has familiarised himself with the results of studies carried out by occupational hygienists who measure particles of asbestos in the atmosphere. Since the evidence was received without objection, it is not necessary to come to a conclusion concerning whether Professor Henderson's expertise would extend to the expression of opinion that visible dust in the atmosphere indicates a concentration in excess of 5 mppcf. The balance of the summary at [154] does not take the matter further. It is the evidence of Professor Rowley and Mr Caon that is relied upon to establish that visible clouds of dust were present at the building site. 96 In both the second report and his oral evidence, Professor Henderson acknowledged that given the spray comprised a mixture of cement and asbestos the presence of visible dust did not, of itself, establish particles of asbestos in excess of 5 mppcf. This is the issue raised in ground 6(b). 97 Ground 6(b) contends that his Honour's finding at RJ1 [30] (Red 51.H-L) that Professor Rowley, over the whole period of exposure during the spraying process, was exposed to concentrations of asbestos and dust fibre in the atmosphere well in excess of 5 mppcf was without evidence to "properly support" it. If there were no evidence capable of supporting the finding, this would be an error of law susceptible of correction by this Court. 98 The evidence was that Professor Rowley was present when the spraying was done and that it was "very dusty, I mean there were clouds of dust everywhere" (Red 47. R) Professor Rowley had stood at the bottom of a ladder from which the sprayer was working and his Honour found that he must have been under some spray and dust cloud at that point. It was dusty more or less everywhere to a greater or lesser extent over the whole of the floor. (Red 47.S-X) Clouds of dust went into the air when bags of asbestos were tipped into the back of the asbestos spray machine. (Red 48.C-E) Asbestos dust was visible in the air and resembled snowflakes. (Red 48.F-G) When the bags of asbestos were opened, handfuls of asbestos were put into the machine. This was to be significant because it revealed that, apart from the asbestos spray, which was probably mixed with cement, there was also pure asbestos liberated into the atmosphere. (Red 48.K-L)

[101]

99 His Honour referred at [27] and [28] to evidence that if dust is visible in the atmosphere in ambient light, its concentration in the atmosphere is at least 5 mppcf. (Red 50.I-X) In evidence in proceedings in November 1994, Professor Ferguson was asked whether there was any scientific material that indicated that if the dust was visible in the air it was likely to be above the Dreessen standard. He replied, "I think the general answer of that is it is likely to be above the Dreessen standard." (Blue 860.T-U) In further evidence given by Professor Ferguson in 1997, he was asked whether, if one could see dust in the air under diffused lighting conditions, then the probability was that the dust cloud was over 5 mppcf. He replied, "yes, probably was". (Blue 1556.G) His Honour referred to further evidence to similar effect from Dr Joseph. He also had regard to Mr Kilpatrick's experience of the observation of dust in the atmosphere and the conduct of laboratory assessments in this respect. 100 His Honour took into account that the spray was a mixture of asbestos and cement. He referred to the contractual specification in this respect. He was not able to make a finding as to the amount of cement in the mix. He was satisfied that asbestos was "by far the predominant component of the spray mix". (Red 55.Q) In coming to that conclusion he took into account descriptions in the literature relating to asbestos spraying. Barnes in Asbestos Spraying, an Occupational and Environmental Hazard (CX24; Blue 717-720) described the process of spraying as involving a mix of asbestos with small amounts of mineral and cement powder. In the chapter by Dr Tweedale "Sprayed limpet asbestos: technical, commercial and regulatory aspect" published in Peters GA and Peters BJ (eds) (1999) Asbestos Exposure and Diseases Control: Sourcebook on Asbestos Diseases the specification for asbestos spray was given as 60:40 asbestos to cement. It was open to find that asbestos was the predominant component of the spray. The finding at [30] reflected this circumstance and the findings at (Red 55.U-X): "… [A]t all times Professor Rowley was standing or moving in dust visible in the atmosphere and also the fact that one of the sources of that dust was pure asbestos liberated into the atmosphere when it was removed from the bag to the machine." 101 This Court is not authorised to overturn findings of fact, including robust findings. Its function is limited to appeal in point of law. The contention that there was no evidence capable of supporting the factual finding at [30] in my view is not sustained.

[102]

Notice of Contention 102 At the commencement of the trial, the University applied for, and was granted, leave to amend its cross-claim by adding as a particular of negligence that the "Dreessen standard" had been breached. His Honour deferred ruling on the application. In his reasons, he recorded that he did not consider prejudice had flowed to BIC from the proposed amendment, and it was allowed. ([8]; Red 42.V-43.C) His Honour's conclusion did not depend upon this particular of negligence. This is the subject of the University's Notice of Contention. 103 The University, by Notice of Contention, seeks to have the decision of the primary judge affirmed on the following basis: 1. On the evidence, His Honour found that the exposure to asbestos dust and fibre experienced by Mr Rowley exceeded 5 million particles per cubic foot or the recognised Dreessen standard. 2. The content of the duty of care owed to Professor Rowley by the Appellant included compliance with the Dreessen standard. 3. The breach of the Dreessen standard amounted to a breach of the Appellant's duty of care. 104 This Court is not authorised to make findings of fact on an appeal from the Tribunal. The University submitted that the determination of its contention did not require the Court to make any finding of fact. In supplementary submissions, it was put that all the Court was required to do was to apply the decision in Seltsam Ltd v Minahan (1996) 13 NSWCCR 410 to the facts found by the primary judge. This submission evidences the same misconception as BIC's submission that his Honour erred in not making the same finding as was made in O'Neill. 105 In Seltsam v Minahan, the plaintiff was employed by Seltsam, a manufacturer of asbestos, for a short period, perhaps not more than four days, in 1955. Sheller JA (Powell JA agreeing) approached Seltsam's appeal upon the basis that it had been open to the trial judge to find that in that part of the Seltsam premises where the plaintiff worked the level of 5 mppcf was exceeded during the time of his employment. Certain of the tests carried out by the Health Department had produced results well in excess of the accepted limit. Sheller JA considered that the finding of these levels justified the trial judge's conclusion that Seltsam had been indifferent to the risks of injury to its employees in the section of its factory in which the plaintiff worked (at 421). Handley JA considered Seltsam's liability could be properly based on the finding that it was in breach of the Dreessen standard. The plaintiff in that case was employed by Seltsam, if only for a period of days. 106 The study by Dreessen, "A Study of Asbestosis in the Asbestos Textile Industry", published by the US Treasury Department Public Health Service, proposed a threshold concentration of asbestos dust, being the highest dust concentration that would not produce pneumoconiosis in originally healthy workmen during their entire working life. In this context it was said that: "Because clean-cut cases of asbestosis were found only in dust concentrations exceeding 5 million particles per cubic foot, and because they were not found at lower dust concentrations, 5 million particles per cubic foot may be regarded tentatively as the threshold value for asbestos-dust exposure until better data are available." 107 Mr M J Neil QC, who with Mr Sheller appeared for the University, submitted that no exceptions were stated to the threshold proposed by Dreessen. It followed, so it was said, that exposure on a single occasion to an amount of asbestos dust in excess of 5 mppcf established negligence on BIC's part without more. I am not persuaded that that is so. 108 The introduction to the Dreessen article states, "When asbestos dust is inhaled daily, year in and year out, a lung disease termed asbestosis may develop". (Blue 75.L-M) The objectives of the study were stated to be threefold: "1. to make a medical study of the effects of long-continued inhalation of asbestos dust on the human body; 2. to identify the manufacturing processes that create dust and to recommend practices and, when necessary, equipment that will reduce the dust exposure of workers; and 3. to find out what concentration of asbestos dust can be tolerated without injury to health." (Blue 76.J-M) 109 I have already noted the introduction to the NHMRC standard at [71] above.

[104]

In Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341 Kirby J, who dissented in the result, analysed the reasons why generally the duty of care ought not to be defined with particularity (at 352-354 [48]-[56]). After citing Professor Fleming, The Law of Torts , (9th ed, 1998) at pp 117-118 his Honour went on to say (at 353 [53]): "The first reason identified by Professor Fleming for rejecting the appellant's approach to the duty issue is compelling. As an element of the tort of negligence, the duty of care is already overworked. It is problematic enough without imposing the additional burden of particularising, in a detailed fashion, all of the specific risks against which defendants must take care." 111 In my opinion, the failure to comply with the Dreessen standard was a circumstance to be taken into account in deciding whether in all the circumstances BIC breached the duty of care that it owed to Professor Rowley. This is how his Honour approached the issue. The University's contention should be rejected. The cross-appeal 112 The University cross-appeals from his Honour's apportionment of responsibility for Professor Rowley's injury, as between it and BIC. His Honour assessed the amount of the contribution recoverable from BIC under s 25 of the Wrongs Act 1936 (SA) as 35 per cent. 113 The principles governing apportionment under the South Australian legislation are the same as those under the New South Wales legislation. It is necessary to compare the culpability and the relevant importance of the acts of each party in causing the damage: Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532-533. It is not asserted that his Honour misstated the principles but, rather, that his determination was affected by error of the type described in House v The King [1936] HCA 40; 55 CLR 499 at 505 in that: (a) His Honour allowed extraneous or irrelevant matters to guide or effect him including matters which were not the subject of evidence; (b) Upon the facts the outcome is unreasonable or plainly unjust." (Orange 50.H-J) 114 His Honour's reasons for the apportionment are as follows: "[157] It is acknowledged that the University is a tortfeasor within the meaning of the section. There was a suggestion that this acknowledgment may have been simply on the basis that there being a judgment against it by consent that conclusion is inevitable. If, by that, it was intended to make an issue of this matter for the purpose of considering the extent of the contribution that should be allowed I would find, in any event, that the University was a tortfeasor. I do not need to express any reasons for that. Enough has been written as to why BIC is a tortfeasor. The University, being Professor Rowley's employer, is in no better position than BIC.

[107]

[161] Considering these matters I think a fair contribution that the University is entitled to is 35%." (Red 106.V-108.T) 115 The complaint this his Honour allowed extraneous or irrelevant matters to guide his determination is directed to the first bullet point of [158]. The University submits that no evidence was before his Honour of the content of the curricula in the medical, engineering and architectural faculties. Mr Neil also submitted that, given that there was no evidence that the University had actual knowledge of the health risks associated with asbestos, it was an error to find that its position was made worse by its assurance to Professor Rowley that the area where the asbestos was being sprayed was safe. This was a reference to Professor Rowley's evidence that he had been accompanied on the inspection by the University's architect, Mr Harrison. He had said to Mr Harrison, "this seems a very dusty, dangerous environment, are you sure we're all right" and Mr Harrison said, "oh, yes, the workmen all around are not wearing masks, it's a safe kind of asbestos and don't worry". (Blue 1917.U-V) 116 Mr Neil submitted that the result was perverse in that BIC, an entity with actual knowledge, bore substantially less liability than the University, which had constructive knowledge only. In the University's written submissions, reference was made to a number of decisions, including BI (Contracting) Pty Ltd v Myer Emporium Ltd [2005] NSWCA 305; 3 DDCR 142; BI (Contracting) Pty Ltd v Strikwerda [2005] NSWCA 288; 3 DDCR 149; BI (Contracting) Pty Ltd v The Public Trustee of South Australia (2005) 3 DDCR 161 at [60]; Higgins v William Inglis & Son Pty Ltd [1978] 1 NSWLR 649 and Rolls Royce Industrial Power (Pacific) Ltd v James Hardie & Co Pty Ltd (2001) 53 NSWLR 626 at 647 [136]-[137], 648 [144]. 117 In Podrebersek it was noted that a finding on the question of apportionment is one upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds" (citing British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 201 (at 532). This caution applies to an appellate court deciding an appeal by way of rehearing. There is the added constraint present here in that the cross-appeal is confined to error in point of law. 118 His Honour's rhetorical question, "what was it teaching its medical, engineering and architectural students in 1961?" did not involve recourse to material that was not in evidence. His Honour accepted that in 1961 the University did not have actual knowledge of the health risks associated with asbestos. Consistently with this finding, his Honour assumed that the University was not teaching its students of those risks at that time. It was not an error for his Honour to take into account that Professor Rowley had inquired of the University's architect whether it was safe to remain in the dusty atmosphere of the building site and been reassured that this was safe asbestos. 119 In BI (Contracting) Pty Ltd v Myer Emporium Ltd, the trial judge took into account that Myer, the plaintiff's employer, was a department store only peripherally concerned with the building industry, as a consumer of its services and a retailer of hardware products. It had not received any advice from its architects or builder about the dangers of asbestos. In that case, apportionment was in the ratio of 10 per cent to the Myer Emporium and 90 per cent to BIC. The appeal against this determination was dismissed. I do not consider that it was an error for his Honour to have assessed the University's culpability by reference to the conclusion that, in 1961, it ought to have known of the dangers to health posed by asbestos, particularly since it was in the business of teaching medicine, architecture and engineering. The facts of the present case are significantly removed from those with which the Court was concerned in BI (Contracting) Pty Ltd v Myer Emporium Ltd. 120 Strikwerda did not involve any analysis of the basis of the apportionment. 121 The reference in the University's submissions to Higgins v William Inglis and to Rolls Royce Industrial Power (Pacific) is with respect to the proposition that in determining apportionment a greater liability will generally attach to a party with knowledge of a danger compared to a party with constructive knowledge. (Orange 50.S-51.C) The reference is to Stein JA in Rolls Royce Industrial Power at 647 [136]-[137]. His Honour in these paragraphs discusses Higgins v William Inglis. The context is the provision in s 5(2) of the 1946 Act that permits the Court to exempt a person from liability to make contribution or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. In Higgins v William Inglis, the owner of a bull, which had savaged a man at a livestock auction, claimed contribution or indemnity under s 5(2). Taking into account that the owner's son, when making delivery of the bull to the auctioneers, had made full disclosure of its dangerous tendencies, no responsibility for the ensuing damage attached to the owner and the owner, accordingly, was held to be entitled to recover full indemnity from the auctioneer in respect of the damages that he was liable to pay to the plaintiff. In my opinion, nothing in William Inglis or in Rolls Royce Industrial Power points to legal error in the apportionment made in this case. 122 In BI (Contracting) Pty Ltd v The Public Trustee of South Australia [2005] NSWCA 306; 3 DDCR 161, the trial judge apportioned responsibility as between BIC and the plaintiff's employer in the ratio 75 per cent to BIC and 25 per cent to the employer. In that case, the challenge to the apportionment was advanced on two bases: that the trial judge had (i) wrongly taken into account the moral culpability of the parties and (ii) wrongly given weight to BIC's actual knowledge, in contrast to the employer's constructive knowledge. Mason P (with whom Handley and Beazley JJA agreed) held there was no error in the trial judge's shorthand use of the expression "moral culpability". His Honour observed that if there were remaining complaints they went no further than cavilling at the particular apportionment awarded (at 177 [61]). 123 His Honour considered the University, as Professor Rowley's employer, having been well placed to know the risks of asbestos in 1961 and whose architect had, wrongly, allayed Professor Rowley's concerns, should bear the greater responsibility in the apportionment. I am not satisfied that his determination in this respect involved legal error. 124 For these reasons, I propose that the appeal and the cross-appeal each be dismissed with costs. 125 McCLELLAN CJ at CL: I agree with Bell JA.

BI (Contracting) Pty Limited v University of Adelaide

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