//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2009] NSWCA 338
Court of Appeal (NSW)
2009-09-07
Allsop P, Hodgson JA, Basten JA, Curtis J
Original judgment source is linked above.
CITATION: CSR LTD v AMACA PTY LTD [2009] NSWCA 338
JUDGMENT OF: Allsop P at 1; Hodgson JA at 51; Basten JA at 82
(1) Allow the appeal and set aside the judgment of the Dust Diseases Tribunal of 25 June 2008 and the orders made on 8 July 2008.
DECISION: (a) dismiss the cross-claimant's claim for contribution against the cross-defendants; (b) order that the cross-claimant pay the cross-defendant's costs of the proceedings in the Dust Diseases Tribunal on the cross-claim.
(3) Order the respondent to pay the appellants the sum of $375,000 (being the amount paid by them to the respondent as a condition of the stay granted in the Tribunal) together with interest at the rate prescribed by Schedule 5 to the Uniform Civil Procedure Rules 2005 (NSW) calculated from the date of payment to the date on which the amount is repaid by the respondent.
(4) Order the respondent to pay the appellants' costs of the appeal.
CATCHWORDS: APPEAL - when appeal lies - scope limited to appeal from decision of Tribunal in point of law - challenge to finding of duty of care - whether evidence to support finding - nature of error - significance of "illogicality" in reasoning or "perversity" in fact-finding - TORTS - negligence - duty of care - pleural mesothelioma contracted after exposure to crocidolite asbestos as young child - two periods of exposure of between three and seven days each - exposure due to destruction of cement sheets containing asbestos mined no earlier than September 1965 - possibility of link between "transitory" or "minimal" exposure documented in 1962 - miner of asbestos aware of medical knowledge - whether knowledge of miner of risks posed by asbestos gave rise to duty of care - WORDS AND PHRASES - "blue asbestos" - "transitory exposure"
LEGISLATION CITED: Dust Diseases Tribunal Act 1989 (NSW), s 32 Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Amaca Pty Ltd v Hannell [2007] WASCA 158; 34 WAR 109 Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bale v Seltsam Pty Limited [1996] QCA 288 Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 Chapman v Hearse [1961] HCA 46; 106 CLR 112 CSR Limited v Young (1998) 16 NSWCCR 56 E v Secretary of State for the Home Department [2004] QB 1044 House v The King [1936] HCA 40; 55 CLR 499 CASES CITED: Julia Farr Services Inc v Hayes [2003] NSWCA 37; 25 NSWCCR 138 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Mount Isa Mines Ltd v Pusey [1970] HCA 60; 125 CLR 383 Nielsen v Seltsam Pty Ltd (DDT No 280 of 2003) Seltsam Pty Limited v McNeill [2006] NSWCA 158; (2007) 4 DDCR 1 Shirt v Wyong Shire Council [1978] 1 NSWLR 631 Tame v State of New South Wales [2002] HCA 35; 211 CLR 317 Western Districts Developments Pty Limited and Turnpike Lane Pty Limited v Baulkham Hills Shire Council [2009] NSWCA 283 Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23 Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1972] AC 741 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
TEXTS CITED: F Trindade, P Cane and M Lunney The Law of Torts in Australia (4th Ed) at 468
CSR Limited - First Appellant PARTIES: Midalco Pty Limited - Second Appellant Amaca Pty Limited - Respondent
COUNSEL: B Walker SC/Ms JS Gleeson - First and Second Appellants G M Watson SC/J C Sheller - Respondent
SOLICITORS: Colin Biggers & Paisley - First and Second Appellants DLA Phillips Fox - Respondent
LOWER COURT JURISDICTION: Dust Diseases Tribunal
LOWER COURT FILE NUMBER(S): DDT 238/2001/1
LOWER COURT MEDIUM NEUTRAL CITATION: Amaca Pty Ltd v CSR Limited [2008] NSWDDT 18
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40315/08 DDT 238/2001/1
ALLSOP P HODGSON JA BASTEN JA
19 October 2009 CSR LTD v AMACA PTY LTD Headnote In 1998 Mrs Belinda Dunn ("the plaintiff") contracted pleural mesothelioma from exposure to crocidolite asbestos fibres during two separate brief periods in 1970 and 1971, when she was aged three and four respectively. The fibres were released from broken up asbestos cement sheets that were removed, in 1970, from the ceiling of the den of the house in which the plaintiff was living, and in 1971, from the roof of the carport. In each case, following removal, the plaintiff was exposed to asbestos dust for between three and seven days, as she assisted with clearing away broken sheets, and whilst she played games on the resulting mound of asbestos sheeting.
The plaintiff brought proceedings in the Dust Diseases Tribunal against Amaca Pty Ltd, being the manufacturer of the cement sheets. These proceedings having settled, Amaca brought a cross-claim against the appellants, CSR Ltd and its wholly owned subsidiary, Midalco Pty Ltd. Midalco operated a crocidolite asbestos mine at Wittenoom in Western Australia, and in conjunction with CSR, mined, milled and supplied the asbestos to Amaca. In 1962 Dr James McNulty, who was in indirect communication with CSR, documented the possibility of "transitory" or "minimal" exposure to crocidolite asbestos giving rise to pleural mesothelioma.
Curtis DCJ held that the appellants were liable for 50% of the plaintiff's damages on the basis that in September 1965, found to be the earliest date at which the asbestos contained within the sheets could have been mined, the state of knowledge of the appellants as to the dangers associated with crocidolite asbestos gave rise to a duty of care to persons in the position of the plaintiff. The appellants appealed to this Court from his Honour's decision.
(i) whether the knowledge of the appellants as to the risk posed by transitory or minimal exposure to crocidolite exposure gave rise to a duty of care owed to the plaintiff, and
(ii) whether the Tribunal erred by relying upon a medical journal article not in evidence before the Tribunal.
1 The imposition of a duty of care depended on what CSR ought reasonably to have anticipated or foreseen as to the risk of injury, drawing upon the contemporary base of knowledge in 1965. The evidence of the appellants' state of knowledge did not support a finding that the appellants should have understood Dr McNulty to have foreseen in 1962 that such exposure as experienced by the plaintiff would give rise to pleural mesothelioma: [25], [39], [49] - [50], [85], [152]. Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40, applied.
CSR Limited v Young (1998) 16 NSWCCR 56; Seltsam Pty Limited v McNeill [2006] NSWCA 158; (2007) 4 DDCR 1, applied but distinguished.
Chapman v Hearse [1961] HCA 46; 106 CLR 112, considered.
Mount Isa Mines Ltd v Pusey [1970] HCA 60; 125 CLR 383; Tame v State of New South Wales [2002] HCA 35; 211 CLR 317; Bale v Seltsam Pty Limited [1996] QCA 288; Amaca Pty Ltd v Hannell [2007] WASCA 158; 34 WAR 109, referred to.
2 The evidence was capable of supporting a finding that the appellant were aware that the material they were putting into the world was very dangerous in ways not understood, through exposure substantially less than had been previously believed, and that there was no understanding of how much or how little exposure was required in order that the material have lethal effects. In such circumstances the appellants owed the plaintiff a duty to exercise reasonable skills and care to protect her from risk of injury: [72] - [75]. CSR Limited v Young (1998) 16 NSWCCR 56, applied.
In relation to (ii) (per Hodgson and Basten JJA, Allsop P not deciding):
4 The error did not occasion a substantial miscarriage of justice under the Uniform Civil Procedure Rules 2005 (NSW), r 51.33: [80].
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40315/08 DDT 238/2001/1
ALLSOP P HODGSON JA BASTEN JA
19 October 2009 CSR LTD v AMACA PTY LTD Judgment 1 ALLSOP P: I have had the advantage of reading in draft the reasons of Hodgson JA and Basten JA. I agree with the orders proposed by Basten JA. Given that their Honours have fully canvassed the relevant reasons of the Tribunal and the facts I am able to express myself assuming a familiarity with that background. 2 It was common ground at the appeal that the Court should approach the matter without reference to the 1965 Newhouse article on the basis that there was no evidence to support the conclusion of the Tribunal that the article was available to CSR and Midalco (to which I will compendiously refer as CSR) on or before September 1965. There was no debate to the contrary of the proposition that this was an error of law entitling this Court to interfere under the Dust Diseases Tribunal Act 1989 (NSW), s 32 if the error was operative: see the reasons of Basten JA at [86] below; and Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258 at [11], [130] and [143]-[146]. Amaca supported the decision of the Tribunal on the remaining evidence, submitting that the conceded error was not operative. 3 The attack by CSR was upon the conclusion by the Tribunal of the existence of a duty of care. That conclusion was one of law: Caltex at [16] and see generally Western Districts Developments Pty Limited and Turnpike Lane Pty Limited v Baulkham Hills Shire Council [2009] NSWCA 283 at [3] and [57] and the cases there cited. Nevertheless, that final legal conclusion may depend (as it does here) on factual questions: see, in particular, the discussion by Bryson JA (with whom Handley JA and Tobias JA agreed) in Seltsam Pty Limited v McNeill [2006] NSWCA 158; (2007) 4 DDCR 1 at 15-17 [33]-[35]. 4 Here, the central question debated on appeal was the legitimacy of the Tribunal's conclusion of the reasonable foreseeability of the risk of injury to a person in the position of the three year old Miss Birks (now Mrs Dunn) when helping her mother sweep up broken asbestos sheeting put on the ground by her father and playing on a pile of broken pieces for a short time over a brief period of days. This was a question of fact: see the discussion in Seltsam v McNeill at 15-17 [33]-[35]. 5 It is unnecessary to discuss the application of the multifactorial approach to the imputation of a duty of care: Caltex at [101]-[107]. The only substantive complaint about the Tribunal's conclusion of the existence in or about September 1965 of a duty of care of CSR to persons such as (the as yet unborn) Miss Birks was that there was no evidence capable of supporting the finding, at the appropriate degree of abstraction (see Caltex at [66]-[70] and Seltsam v McNeill at 14-17 [30]-[38]), that it was reasonably foreseeable that the selling of blue asbestos (crocidolite) to Amaca for use in the manufacture of fibre cement (fibro) involved a risk of injury to persons (or children) in the position of Miss Birks. 6 It was common ground that compliance with the duty required the cessation of selling blue asbestos and the closure of the mine. A duty to warn case was abandoned at the trial in the Tribunal. The duty was pleaded in paragraph 10 of the Third Amended Statement of Cross-Claim as follows: "By reason of the matters pleaded in paragraphs 5 to 9 above, [CSR] owed a common law duty of care to [Miss Birks], requiring [CSR] to take reasonable steps to protect [Miss Birks] from the risk of injury caused by inhaling asbestos." 7 There was no debate as to whether the obligation to cease selling the product and close the mine was properly viewed as an aspect of breach, or as part of the delineation of the content of the duty. No aspect of the argument was affected by such a question. 8 Thus, it was common ground on the appeal that if the Tribunal's conclusion as to reasonable foreseeability, leaving out of consideration the article by Newhouse, was legally capable of being supported by the evidence the appeal must fail. Likewise, if the conclusion of reasonable foreseeability was so lacking in evidential foundation to make it legally flawed, the appeal must succeed. 9 Before turning to the evidence before the Tribunal and the arguments, two bodies of principle must be identified: one concerning reasonable foreseeability and duty of care; and the other concerning the proper approach to the identification of legal error in fact finding. 10 As to the first issue, there was no substantive argument about the operative principle as to reasonable foreseeability. In Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 44-48 Mason J (with the "full" and "complete" agreement of Stephen J and Aickin J, respectively) discussed, along with breach, the question of reasonable foreseeability and duty of care. These statements are binding on this Court: Julia Farr Services Inc v Hayes [2003] NSWCA 37; 25 NSWCCR 138 at 142 [2]-[3]; Seltsam v McNeill at 14 [30]; and Caltex at [65]. In Wyong v Shirt, Mason J said at 47: "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." 11 Mason J recognised (at 47) that the concept of foreseeability in connection with the existence of duty involved a more generalised enquiry than in connection with breach. See also Glass JA in Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 639 referring to the question "at the higher level of abstraction". This enquiry is as to the foreseeable risk of harm from the impugned conduct before it occurred: see also Seltsam v McNeill at 17-18 [38]. In Seltsam v McNeill, Bryson JA at 17 [36] made the point that foreseeability is reasonable foreseeability, being a test which "exists in reality and operates within the limits of the reasonable"; it is not to be equated with "the limits of the imagination". In this respect, see also Amaca Pty Ltd v Hannell [2007] WASCA 158; 34 WAR 109 at 185 [349]. 12 Reasonable foreseeability is of the risk of injury; not of the likelihood of injury: Wyong v Shirt, per Mason J at 47 (though principally in discussing breach). 13 In Bale v Seltsam Pty Limited (QCA 23 August 1996) and CSR Limited v Young (1998) 16 NSWCCR 56 the question of the object of the reasonable foreseeability (that is: what is to be reasonably foreseeable) was critical to the differences of opinion in each of the two appellate courts. For present purposes, it is sufficient to recognise that in CSR Limited v Young Giles AJA (as his Honour then was) with whom Cohen AJA agreed, preferred the views of the dissentient in Bale v Seltsam (Fitzgerald P) to those of the majority. The extent of that agreement by Giles AJA with Fitzgerald P can be seen in CSR v Young at [118] 92: "In Bale v Seltsam Pty Ltd the plaintiff had been exposed to asbestos from June 1962. The majority, McPherson JA and Helman J, considered that, on the evidence, at the relevant time the state of scientific knowledge was such that physical injury to a class of persons of which she was one was not reasonably foreseeable. Their Honours appear to have concentrated on mesothelioma rather than personal injury in general, and to have required that on the state of scientific knowledge there was positive foresight of harm rather than foresight that, given the uncertain state of knowledge, there might be harm. Fitzgerald P considered that 'the known toxicity' of asbestos dust and ' the known uncertainty' as to the effects of exposure to asbestos dust, together with knowledge that injury or illness might not emerge for many years, gave rise to a risk which 'could not be dismissed as 'remote', 'slight', 'far-fetched', or 'fanciful'' . The decision in that case obviously depended on the evidence before the court, but I respectfully prefer the approach adopted by Fitzgerald P."
Basten JA at [129] below has quoted the relevant passage from Fitzgerald P's reasons in Bale v Seltsam . 14 In Seltsam v McNeill, Bryson JA made the point at 17-18 [38] that in evaluating the reasonable foreseeability of the risk of injury to the plaintiff at the required level of abstraction: "… It would be an error, a legal error, to bring to bear considerations relating to the foreseeability of risk of injury to classes of people with higher degrees of exposure, either in intensity of involvement in working on the product, or in number of occasions and length of time for which the product was worked on, or otherwise with greater intensity."
His Honour continued at 18-19 [38] and [40]: "[38] … it would be a legal error to treat all end-users of a manufactured product uniformly for the purpose of considering the existence of the duty of care to them unless in reasonable foreseeability of risk of injury their circumstances placed them in the same class. … [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." 15 Neither party submitted that either CSR v Young or Seltsam v McNeill was wrong. CSR did submit that if there was any conflict, Seltsam v McNeill, as the later Court of Appeal decision, should prevail. I do not see any necessary conflict between the two decisions, properly understood in their context and recognising the facts in each case. 16 As to the second issue referred to at [9] above, there was no debate about Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. It was accepted by CSR that it faced the hurdles stated within that case at 155-156: "… To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law …" (citations omitted) The finding of foreseeability and the lack of evidential foundation 17 The finding of the Tribunal was that it was reasonably foreseeable to CSR, as at September 1965, that a child such as Miss Birks might contract mesothelioma from childhood exposure to crocidolite fibre released in the course of domestic building renovation. 18 The case before the Tribunal and the appeal in this Court were conducted on the basis of what CSR was told by Dr McNulty and of what it otherwise knew. From that foundation the conclusions of what was reasonably foreseeable to it at the relevant time were to be drawn. 19 The evaluation of what was reasonably foreseeable is to be informed by what was known at the relevant time (without hindsight) as to the risks posed by asbestos, here it was accepted, blue asbestos or crocidolite. As Bryson JA said in Seltsam v McNeill at 17 [36], this involves an assessment of what is or might be a risk by an evaluation that is "real, reasonable or just". As the learned authors F Trindade, P Cane and M Lunney The Law of Torts in Australia (4th Ed) at 468 put it: "'Reasonable' is a word used to express fact-specific value judgments about the extent to which people ought to be expected to anticipate the likely effects of their conduct on others." 20 The Tribunal found, as was clear from the evidence, that it was not until after 1967 that the uniquely carcinogenic property of crocidolite fibre and the significance of brief or intermittent exposure in the aetiology of mesothelioma were generally recognised: the Tribunal's reasons at [80]. The Tribunal used the word "generally" in part to distinguish what it found was Dr McNulty's "prescience" and to distinguish the conclusion it made as to the medical plausibility of the risk of injury through exposure to "an extremely small quantity" of crocidolite, saying at [80]: "… Dr McNulty, without the benefit of evidence, but armed with sufficient imagination and intelligence, foresaw this development five years earlier. Although not in 1962 proven in the case of crocidolite, the contraction of cancer by susceptible persons through exposure to an extremely small quantity of a carcinogen was then medically plausible." 21 The Tribunal also found at [78], as was clear from the evidence, that before 1966: "... no published study reported the occurrence of mesothelioma in circumstances where the exposure was other than environmental, and then in a period measured by years." 22 The evidential foundation for the conclusion of reasonable foreseeability of the risk of harm to a person in the position of Miss Birks must be found (as the arguments accepted) in the seminal 1960 Wagner article, in the 1962 McNulty article, in the correspondence between Dr McNulty and Dr Rennie and in the answers by CSR to interrogatories. 23 There was no debate about Dr Rennie's knowledge being that of CSR or that Dr Rennie examined all available and relevant medical literature. 24 The case about what a reasonable person in CSR's position should be taken reasonably to anticipate or foresee was based on what it knew and what it ought reasonably to have anticipated or foreseen as to the risk of injury from that contemporary base of knowledge. Mr Walker SC (who, with Ms Gleeson, appeared for CSR) submitted that the parties did not fight the case below on any basis other than the above. In particular, he submitted that Amaca never put a case based on a principle of the need for environmental precaution with this substance. Mr Watson SC (who, with Mr Sheller, appeared for Amaca) did not demur from that proposition. The battle lines of the case in the Tribunal and on appeal marked out an issue as to whether there was any evidence before the Tribunal to support the factual conclusion as to reasonable foreseeability, in the evaluative sense and at the level of abstraction, to which I have referred. 25 In my view, CSR is correct in its submission that there was no such evidence. 26 The making good of this conclusion requires an examination of the findings and the evidence. Because of the full reasons of Hodgson JA and Basten JA I can do this tolerably briefly. I accept, at once, the caution which this analysis must exhibit. The analysis of the factual conclusions of the Tribunal to assess whether they are sustained by evidence carries the danger of treading beyond the boundaries set in Azzopardi. That danger is present here particularly because the overall conclusion is an evaluative one drawn from a number of other found facts. It is necessary therefore to identify which factual findings were evidentially baseless and which were not. As to the latter, even if the finding (to use the words of Glass JA in Azzopardi) is "perverse" or "contrary to the overwhelming weight of the evidence" it is beyond review in this Court. 27 The argument on appeal proceeded on the basis that if the 1960 Wagner and 1962 McNulty articles and the McNulty letters were not capable of being read as referring to slight exposure of the kind experienced by Miss Birks and her father and mother, then there was an absence of evidence for the crucial factual findings supporting the conclusion of reasonable foreseeability and thus legal error in the findings. No submission was put that even if all CSR's submissions about the meaning of the articles and letters and what could be understood from them were correct the individual findings as to those matters were questions of fact: cf Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23 at 58-59, 63 and 64-65 (Court of Appeal); and [1972] AC 741 at 755, 759, 761, 766 and 770 (House of Lords).
28 The findings of fact of the Tribunal challenged as evidentially baseless were:
(a) the findings that the references in the 1960 Wagner article to "slight exposure", in the 1962 McNulty article to "transitory exposure" and in Dr McNulty's letters to "minimal exposure" could be understood (and could reasonably have been understood by Dr Rennie and CSR) as referring to exposure undergone by persons working with fibro cement sheeting containing crocidolite in home renovations or persons nearby that activity;
(b) the finding that there was information in the medical literature or Dr McNulty's letters reasonably identifying or anticipating any risk from exposure of the kind in (a) above;
(c) the conclusions drawn about Dr McNulty's evidence in the Rentz matter (see the Tribunal's reasons at [70]-[75]);
(d) the finding that children were susceptible or at special risk of contracting mesothelioma from transitory childhood exposure to crocidolite (see the Tribunal's reasons at [76]);
(e) the finding that Dr McNulty was prescient in that he was aware of the dangers of transitory exposure of the kind in (a) above (see the Tribunal's reasons at [78] and [80]);
(f) the finding that in 1962 (and before September 1965) there was a medically plausible view that cancer could be contracted by susceptible persons through an exposure to an extremely small quantity of crocidolite (see the Tribunal's reasons at [80]);
(g) the finding that from the 1960 Wagner article and the 1962 McNulty article and Dr McNulty's correspondence it can be concluded that they (Wagner and McNulty) foresaw that children exposed to "low doses" (in the sense described in (a) above) might suffer "damage of the relevant kind" (see the Tribunal's reasons at [83]);
(h) the finding that McNulty communicated the belief in (g) above to Dr Rennie (see the Tribunal's reasons at [83]); 29 As to (a), (b), (e), (f), (g) and (h) of [28] the relevant studies (Wagner and McNulty) and all the letters of Dr McNulty were only capable of being read and understood as discussing risks of exposure at or near mines of an order of magnitude and character utterly different from that which might be produced by working with fibre cement containing asbestos in a home handyman environment. The references to "slight", "transitory" and "minimal" could only be understood in their context of being juxtaposed to heavy exposure for many years. I do not read the articles or the letters as ambiguous in any way in this respect, or reflecting any view then held by Dr Wagner or Dr McNulty (and being communicated to Dr Rennie) that any exposure (however small) to crocidolite fibre in any circumstances (including the casual or occasional breaking up of fibre cement sheeting) could be dangerous. To draw the conclusion that it did, the Tribunal was not making a perverse finding on available evidence. The articles and letters simply did not speak about exposure in any context other than that of mining or industrial or other closely related environmental contact. 30 That this is so and that Dr McNulty did not believe to the contrary can be seen from a letter he wrote on 7 August 1963 about the apparently slight exposure of waterside workers to blue asbestos on the Fremantle waterfront. I set the letter out in full below. If Dr McNulty had the belief attributed to him, he could not have written the letter. It stated: "Visited Fremantle Wharf at the request of Captain Pickles to inspect asbestos handing, on 6 th August, 1963. The Kangaroo was unloading 120 tons of blue asbestos from Port Sampson. The asbestos was pretty well bagged, although a few bags had burst open, liberating some of their contents. There was no visible dust in the atmosphere but there were small scattered tufts of blue fibre lying about the dock and hold. It seemed doubtful that much, if any, dust of a respirable size would be liberated during handling and since contact with the fibre is very occasional and intermittent, no health hazard to the waterside workers at Fremantle would be expected. The spilt fibre should be cleaned up. The waterside workers at Port Sampson who spend a considerable amount of time loading blue asbestos fibre should be examined and arrangements will be made for this to be done by the Mines Mobile Unit in 1964." (emphasis added) 31 The recognised importance of the Newhouse article after 1965 also makes the point. This was described by Professor Ferguson in evidence that was before the Tribunal as follows: "It was not until the publication of the paper by Newhouse and Thompson, delivered at the conference on the biological effects of asbestos in New York in October 1964 and published subsequently in abridged form in [the] Annals of the New York Academy of Sciences in 1965 and in fuller form in the British Journal of Industrial Medicine in the same year, that research and academic workers in this field became more strongly conscious of the risk of mesothelioma from relatively small lung doses of asbestos. Wagner and colleagues 1960 paper had described cases without asbestosis in whom the exposure was environmental, but in all these cases the exposure had been prolonged and to what became later recognised as far the most hazardous type of asbestos fibres in the causation of mesothelioma."
32 It is not this Court's place to make factual findings. I refer to these pieces of evidence to identify the clarity of the proposition that there was no evidential basis in the 1960 Wagner and 1962 McNulty articles or Dr McNulty's letters to conclude that the references to "transitory", "minimal" or "slight" exposures could have been understood at the time as other than in the context of a comparison with heavy mining and industrial exposure understood before 1960 to be a danger. 33 There was no evidence to conclude that Dr McNulty believed, or that CSR was told, anything to the effect that minimal exposure of the kind referred to in [28(a)] above was any risk. 34 As to [28(c)] (Dr McNulty's evidence in the Rentz case), I read Dr McNulty's evidence entirely differently to how it was read by the Tribunal, as discussed at [70]-[75]. To the three paragraphs of Dr McNulty's evidence in Rentz quoted by the Tribunal at [71] of its reasons (being paras 20-22 of Dr McNulty's statement) the next paragraph should be added. I set out all four paragraphs: "20. In relation to the handling of and working with asbestos cement products there was a general belief that the asbestos fibres were locked up in the cement matrix of the product and that the asbestos did not represent any real health risk to persons working with the product. 21. For people putting up asbestos fences, for example, on the weekends using hand tools it wasn't thought that they were exposed to any real risk of an asbestos related disease. 22. It wasn't believed that working with asbestos sheeting presented a significant health hazard. 23. However, I became concerned in the early 1970s of a potential for a risk to people working regularly with asbestos cement products, particularly with power tools." 35 This was evidence under the heading "Asbestos Cement Products". It was not predicated on any particular type of such products, with or without crocidolite. It is true that later in his statement Dr McNulty referred to a doubt about Seltsam's use of crocidolite in its product (see the Tribunal's reasons at [73]). That was hardly emphatic and was divorced in context (at paragraph 51 of the statement) from his earlier comments. It is worth setting out paragraphs 51 and 52 of Dr McNulty's statement in full: "51. Prior to and as at 1974 I would not have considered Mr Nielsen to be at risk of an asbestos caused disease from the limited exposure to asbestos which might have occurred during the work described above. I would have expected any asbestos exposure from this activity to have been well below the then applicable threshold limit value for asbestos exposure of 4 fibres per cc averaged over an 8 hour working day. Although James Hardie in Perth did use some crocidolite during the period from about 1963 to 1966. I doubt that Seltsam Pty Limited would have used it. In my view it would not in 1974/1975 have been reasonably foreseeable that Mr Nielsen could contract an asbestos related disease, including mesothelioma, from the sort of isolated and limited exposure to asbestos which he is likely to have had repairing his garage. That is, such exposure would not then have been seen by medical experts as carrying a risk of causing an asbestos related disease." 36 The reasoning of the Tribunal at [70]-[75] was described by Mr Walker as "specious". I would prefer to deal with it recognising that the Tribunal's conclusion about Dr McNulty's belief referred to above was without evidential foundation. In that context, the reasoning is easier to understand. The Tribunal had reached a view about Dr McNulty's belief in the 1960s (a view which was legally flawed as being without evidential foundation once the clear meaning of the letters is appreciated). In that context, one can understand the Tribunal's need to reconcile Dr McNulty's evidence and his earlier (incorrectly found) belief. 37 The legal error of the Tribunal remains its findings of Dr McNulty's belief in the 1960s and what CSR was told by the articles and letters as to the risk of exposure of the kind referred to at [28(a)] above, not the reasoning process in [70]-[76] of the Tribunal's reasons. Once one appreciates that all Dr McNulty's writings (his 1962 article and his letters) were directed to exposures and circumstances quite different to those of Miss Birks, his evidence in the Rentz case is clear in its effect. Like the letter about the Fremantle waterside workers, it is eloquent testament to the state of his belief in the 1960s and to the only construction available to the 1960 Wagner article, the 1962 McNulty article and the McNulty letters. Again, this is not a finding of fact; it is reinforcement of the entire absence of evidence to support the findings drawn by the Tribunal as to Dr McNulty's beliefs, the intended and proper construction of the articles and Dr McNulty's letters and what Dr Rennie should be taken to have been told. 38 As to [28(d)], there was evidence in the letters of Dr McNulty of his view (which can be inferred to be a medical view) of the susceptibility of children to relevant exposure: see his letter of 8 March 1963. This finding was open. 39 Given the above legal errors in the factual findings, in my view the reasoning of the Tribunal cannot support the conclusion of reasonable foreseeability and thus of a duty of care. 40 First, at [79] of the reasons the Tribunal impermissibly commenced its reasoning from the position that any event which happens is foreseeable. This came from a comment by Dixon CJ in argument in Chapman v Hearse [1961] HCA 46; 106 CLR 112 at 115. His Honour's views are better understood in the judgment of the Court at 120. 41 Secondly, at [80] of the reasons, the Tribunal concluded that Dr McNulty foresaw in the 1960s the significant of brief or intermittent exposure (of the kind undergone by Miss Birks in 1975) and that there was in the 1960s a medically plausible view to that effect. There was no evidential foundations for these conclusions. 42 Thirdly, there was an implicit finding at [81] of the reasons that Dr McNulty's 1962 article spoke of the risk of injury from exposure of the kind undergone by Miss Birks. It did not. There was no evidence to conclude that there was knowledge or information available to CSR to that effect. 43 Fourthly, the Tribunal concluded at [81] of the reasons that the 1965 Newhouse article was available to CSR by September 1965. There was no evidence that it was. 44 Fifthly, the Tribunal concluded (see the Tribunal's reasons at [83]) that both Dr Wagner and Dr McNulty knew or foresaw that people such as Miss Birks might suffer damage in circumstances of "low doses" (implicitly of the kind undergone in fact by her). There was no evidence that either knew or foresaw that. 45 Sixthly, it is true (as stated in [84] of the Tribunal's reasons) that by June 1965 CSR knew that crocidolite caused mesothelioma, and that that disease caused death. This belief, however, on the admissions in the interrogatories was "in circumstances involving the inhalation of significant amounts of asbestos fibre over a prolonged period of time". This was a proper answer in that it plainly reflected the state of knowledge in the Wagner and McNulty articles and the McNulty letters. The evidence before the Tribunal took the matter no further. The reasoning in [84] of the reasons is thus legally flawed insofar as it sought to build on "low doses" and CSR's asserted knowledge in that respect. 46 It is necessary also to deal with [86]-[91] of the reasons, Bale v Seltsam and CSR v Young. It can be readily accepted that if, by September 1965, the available medical knowledge or CSR's knowledge through Dr McNulty was such that there was appreciated to be a risk (that was not far-fetched or fanciful) that any exposure, however slight, including by inhalation of asbestos fibre in the domestic circumstances of Miss Birks' exposure, might cause injury by serious disease such injury would be reasonably foreseeable. There was no evidence to support such a view of the contemporary state of knowledge in September 1965. 47 Likewise, if in September 1965, the available medical knowledge or CSR's knowledge through Dr McNulty was that the risk of injury had been established for certain classes of people with a certain degree of exposure, but the risk was recognised as possibly existing for any exposure, which wider risk could not be eliminated on current knowledge, the reasoning of Fitzgerald P in Bale, approved by Giles AJA in CSR v Young could be seen as applicable. That was not the evidence of the contemporary state of knowledge in September 1965. There was no evidence that there was any appreciation, at all, of any risk to persons (child or adult) from dealing with asbestos sheeting in the circumstances of the kind undergone by Miss Birks or her father and mother and referred to at [28(a)] above. 48 Of course, with the benefit of later acquired medical knowledge the risk can be appreciated. Also, even without the later medical knowledge, one might now say, as a matter of rational exposition, that since some exposure of crocidolite causes mesothelioma, any exposure whatsoever might conceivably cause it, and one should therefore proceed on the basis that this should be seen as a risk until it is eliminated. That was not the contemporary view in 1965. (Though the link as to "any exposure" can also be seen to require medical knowledge, which did not exist in September 1965, on the evidence.) It is not reasonable to impute that standard of foreseeability to CSR in the absence of evidential foundation as to reasonable and informed views at the time. 49 Nor, in my view, is it an answer to say that CSR was producing the substance. It was. The substance had its appreciated risks. However, those appreciated risks did not extend (because of the state of medical knowledge) to circumstances of the kind undergone by Miss Birks and referred to at [28(a)] above. That is not a conclusion based on evidence of medical certainty, but of contemporary evidence and views concerning the risk of injury of the kind referred to by Mason J in Shirt. 50 For the above reasons, I agree with the orders proposed by Basten JA. 51 HODGSON JA: By its third amended statement of cross-claim in these proceedings, the respondent, Amaca, claimed against the appellants, CSR and Midalco, that CSR and Midalco owed a common law duty of care to the plaintiff requiring it to take reasonable steps to protect the plaintiff from the risk of injury caused by inhaling asbestos. 52 In its decision given on 25 June 2008, the Dust Diseases Tribunal, constituted by Curtis DCJ, found that the appellants owed a duty of care to the plaintiff, and found that they had breached that duty. The appellants appeal from that decision. 53 The appeal to this Court is limited to an appeal from a decision of the Tribunal in point of law: Dust Diseases Tribunal Act 1989 (NSW) s 32(1). The sole issue raised by this appeal is whether the Tribunal was in error in finding that the appellants owed a duty of care to the plaintiff. 54 Midalco mined asbestos in the vicinity of Wittenoom in Western Australia between 1944 and December 1966, when mining operations ceased because of continuing losses. It is clear that during that period very substantial quantities of crocidolite (blue) asbestos were mined and sold for use in the building industry. The particular asbestos which caused the plaintiff's mesothelioma was sold by the appellants in or after September 1965; and it is common ground that the decision of the primary judge was to the effect that the appellants had a duty of care to the plaintiff in and after September 1965. Decision of Tribunal 55 In my opinion, it is appropriate to set out the whole of the reasoning of the Tribunal on the question of the duty of care: Foreseeability
Before the publication of the article Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province by Wagner et al in the British Journal of Industrial Medicine in 1960, there was no reason to suppose that any cancer, other than lung cancer, may be induced by exposure to asbestos fibre. In the case of lung cancer, the relationship was associated with the presence of asbestosis, a disease contracted after prolonged industrial exposure.
Mesothelioma is a very rare form of cancer, the aetiology of which was for a long time unknown. Wagner and his associates studied 33 cases that occurred in South Africa and concluded that their findings were highly suggestive of a relationship between mesothelioma and crocidolite asbestos.
The subjects of the study did not all work in the asbestos industry. The histories of exposure included persons who lived for a time near asbestos mines. In only 8 of the 33 cases was evidence of asbestosis demonstrated. The case histories included the following: Case 4-K. H., a white female, 56 years of age (born 1898), was a social worker, who could only have had a short exposure to asbestos as a child and probably a further slight exposure as a young woman. She may have paid several short visits to the mines with her husband at a later period. She was born in Griquatown where she lived until she was five years of age. Her family then moved to Kimberley where from 1916 to 1922 she worked as a clerk in an asbestos warehouse. Her husband owned an asbestos mine from 1933 to 1940. Case 15-S.S.V., a white female, 42 years of age (born 1916), is a housewife, who lived on a mine near Johannesburg ... She spent most of her youth in the asbestos belt. Case 24-D.G., a white male. 32 years of age (born 1922), by profession an accountant, was born in England but came to South Africa as an infant. He spent his early childhood in Kuruman [a town in the asbestos belt] and left at the age of 7. He later qualified as a chartered accountant in Kimberley. His only subsequent contact with asbestos was the auditing of the books of an amosite mine in the Transvaal.
In February 1965 a paper by Newhouse & Thomson, published in the British Journal of Industrial Medicine, drew attention to the incidence of mesothelioma in people living in the vicinity of a London asbestos factory where crocidolite was used.
It was then apparent to persons informed by such publications, that, in comparison to those levels required to produce asbestosis and asbestos related lung cancer, lower levels of asbestos in inspired air may cause mesothelioma.
The vice of crocidolite, identified by the Wagner and Newhouse articles, was that it was not only an agent of slow change in lung tissue, but also that it may act as a primary carcinogen at very low doses.
Dr James McNulty was, between 1957 and 1963, a chest physician employed by the Western Australian Department of Public Health as a Mines Medical Officer. During this time he visited Wittenoom and alerted Australian Blue Asbestos to the health hazards presented by blue asbestos.
In December 1962 the Medical Journal of Australia published an article by Dr McNulty entitled Malignant Pleural Mesothelioma in an Asbestos Worker . Dr McNulty reported the case of a man who contracted mesothelioma in 1960 with a history of working at Wittenoom as a mill worker between 1948 and 1950. In his discussion of the case Dr McNulty wrote: There appears to be a relationship between exposure to blue asbestos and the development of the pleural mesothelioma in this case. Pleural mesothelioma is a very rare tumour and the details are known of only three cases in Western Australia. Asbestosis has, regrettably, become less rare, but there are less than 49 cases in the state. The relatively short period of exposure to blue asbestos dust confirms an impression received from Wagner et al (1960, 1961) that these tumours may arise after transitory exposure to crocidolite in susceptible persons .
Experience in Western Australia certainly confirms that blue asbestos is a very harmful and a lethal fibre. The dust is one that urgently requires further experimental study ... The interval between exposure and the development of the tumour is much shorter than has been previously reported... (Emphasis added)
Dr H Maynard Rennie was a specialist physician, who upon the evidence, acted as a consultant to CSR. It is apparent from correspondence that he was in close contact with the management of CSR and the Australian Blue Asbestos Co concerning conditions at Wittenoom, and advised the company on matters of industrial hygiene.
In the period 1961 to 1963, Dr McNulty engaged in correspondence with Dr Rennie concerning the health of men employed at Wittenoom. On 18 September 1961, Dr McNulty wrote to Dr Rennie drawing his attention to the health hazards created by the dust at the Wittenoom mine. He added: The known hazard is real enough but reading papers on pleural mesothelioma (notably J. C. Wagner, C.A Sleggs & P. Marchand, British Journal Indust Medicine 1960, 17, 260) one is left with a suspicion that a combination of individual idiosyncrasy and minimal asbestos exposure, such as from road surfacing, may be dangerous.
On 25 October 1961 Dr McNulty again wrote to Dr Rennie concerning the conditions at the mine. After mentioning that case of mesothelioma the subject of his journal article, Dr McNulty's letter included the following sentence: I am seriously concerned that these cancers of the pleura which are being reported in large numbers from South Africa, are due to an individual susceptibility and minimal exposure to blue asbestos (crocidolite). (Emphasis added)
In yet another letter, of 10 December 1962, Dr McNulty said this: I am still a little concerned about the carcinogenic effect of crocidolite and wish that the Company would not use its tailings for roads and paths. Tailings were used as fillers at the golf course so that the poor devils inhale asbestos at recreation as well. (Emphasis added)
In a letter of 8 March 1963, Dr McNulty forwarded to Dr Rennie a copy of a letter from Dr Wagner. That copy is not in evidence. However in the text of his own letter to Dr Rennie, Dr McNulty said: " The reference [presumably by Wagner] to the possible slightness of exposure especially in childhood is one that has always worried me and why I have always decried the practice of using mill tailings for laying paths etc in the township ". (Emphasis added)
Dr McNulty gave evidence in a matter of CSR Limited v Young (1998) 16 NSWCCR 56. In the course of cross-examination he rejected the proposition that the phrase " transitory exposure ", which he used in his article in the Australian Medical Journal, was intended to describe the relatively brief exposure of the person the subject of his article. That man worked for two years in an asbestos mill. Further, exposure of Mrs Olson was not transitory in any sense of the word. She lived in a township the atmosphere of which was heavily contaminated with crocidolite fibre.
Dr McNulty also prepared a witness statement in the matter of Rentz v Seltsam Pty Ltd (supra). That case concerned a home handyman who contracted mesothelioma. He had, in or about 1975, cut with a handsaw, and fixed to his garage, several sheets of asbestos cement cladding.
Dr McNulty's statement read in part: 20. In relation to the handling of and working with asbestos cement products there was a general belief that the asbestos fibres were locked up in the cement matrix of the products and that the asbestos did not represent any real health risk to persons working with the product.
This evidence of Dr McNulty is to be read in the context of the adoption in his statement of a publication by the Public Health Department of Western Australia that reads in part: Much criticism and publicity has been given to the health hazards of asbestos but these are largely due to early heavy exposure to asbestos dust and particularly to crocidolite (blue) asbestos. Crocidolite is now no longer mined in Australia and is very little used in this country...
It is also to be read in the light of observations by Dr McNulty that the sheets of asbestos cement upon which Mr Nielsen worked in the construction of his garage were manufactured by Seltsam Pty Ltd and " Although James Hardie in Perth did use some crocidolite during the period from about 1963 to 1966 I doubt that Seltsam Pty Ltd would have used it ."
In giving his evidence Dr McNulty was clearly aware of the significance of small amounts of crocidolite, were that fibre to have been included in the asbestos cement sheets upon which Mr Nielsen worked. Given Dr McNulty's concerns as to susceptibility during childhood, it is also relevant that Mr Nielsen was exposed as an adult.
Further, the commonsense assumption that breaking up weathered fibro sheets, and sweeping up the broken pieces and dust would expose a person to a higher respirable concentration of liberated asbestos fibre, (particularly if that fibre were crocidolite) than installing new sheets with hand tools, is borne out by the expert evidence of Dr Francis.
While Dr McNulty in communication to Dr Rennie referred to what he saw as an actual danger posed by the use of crocidolite tailings upon paths at Wittenoom, he nevertheless used the term "transitory exposure" in the more general warning contained in his article in the Australian Medical Journal. The duty of Midalco and CSR to Mrs Dunn is postulated upon appreciation of those words in the context of the references by Wagner and Dr McNulty to the especial risks posed to children by slight exposure. In the Shorter Oxford English dictionary the word "transitory" bears the meaning "fleeting".
In a letter to Dr McNulty of 29 September 1961 Dr Rennie said: " At the moment I am reading all the articles I can get hold of ". It is improbable in the extreme that he did not read Dr McNulty's article published in the Medical Journal of Australia in December 1962 in which Dr McNulty said that " These tumours may arise after transitory exposure to crocidolite in susceptible persons ". He would have read the letter from Wagner to Dr McNulty forwarded to Dr Rennie in March 1963 in which Wagner referred to possible slightness of exposure especially in childhood . It is improbable that he did not read the paper by Newhouse and Thomson published in the British Journal of Industrial Medicine in February 1965.
Before 1966 no published study reported the occurrence of mesothelioma in circumstances where the exposure was other than environmental, and then in a period measured by years. Dr McNulty was prescient in his use of the words " transitory exposure " to describe the risks of crocidolite. Both he and Wagner appreciated the particular risks of transitory exposure in children.
In the course of argument in Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 Dixon CJ observed at 115 that: Foreseeability does not include any idea of likelihood at all. I cannot understand why any event which does happen is not foreseeable by a person of sufficient imagination and intelligence .
It was not until after 1967 that the uniquely carcinogenic property of crocidolite fibre, and the significance of brief or intermittent exposure in the aetiology of mesothelioma, were generally recognised. Dr McNulty, without the benefit of evidence, but armed with sufficient imagination and intelligence, foresaw this development five years earlier. Although not in 1962 proven in the case of crocidolite, the contraction of cancer by susceptible persons through exposure to an extremely small quantity of a carcinogen was then medically plausible.
If Midalco and CSR did not know of the content of Dr McNulty's 1962 article in the Australian Medical Journal then they should have. The subject of the article was one of Midalco's former employees. If they did not know of the Newhouse and Thomson article published in February 1965 then, the business of ABA being exclusively the production of crocidolite, they should have. If they did not seek to inform themselves by inquiring of their consultant physician, Dr Rennie, as to the content of opinions passing between him and Dr McNulty, an officer of the Western Australian Department of Health who visited Wittenoom in the course of his office, then they should have. In any event they should have informed themselves by speaking directly to Dr McNulty on those occasions when he visited the mine.
In addressing foreseeability for the purpose of imposing a duty of care, it is necessary to conceive, at an appropriate level of abstraction, of the class of persons to whom the risk was foreseeable.
Relevant to a finding of foreseeability in this case is the circumstance that, at the relevant time, two experts in the field, J C Wagner and Dr McNulty, foresaw that persons who may predictably belong to the class in question, children exposed to low doses, might suffer damage of the relevant kind, and that this belief was communicated to Dr Rennie, a consultant to ABA and CSR. As I have said, if those companies did not seek to inform themselves from Dr Rennie's store of expertise, they should have.
By June 1965 CSR and Midalco knew that crocidolite caused mesothelioma. They knew that mesothelioma caused death. They knew or ought to have known that children were susceptible and at risk of contracting this disease from transitory exposure to crocidolite. They knew that certainty of the risks associated with low doses may not emerge for many years, during which time a large number of persons may unknowingly contract the disease. Midalco has admitted that it knew that crocidolite fibre sold by it was used by Hardies to manufacture building products, and that if those products were broken crocidolite dust would be released.
Mrs Dunn was a member of a class which may be described as children, susceptible because of early childhood development, who suffer transitory exposure specifically to the crocidolite fibre in the course of home renovation. A remote risk to such a class of persons may nevertheless be foreseeable ( Bolton v Stone [1951] UKHL 2; [1951] AC 850).
In 1965 the risks faced by such a class were beyond certain scientific knowledge. However, in my opinion, the test of foreseeability does not depend upon sure knowledge of a risk. It is satisfied if the risk is a reasonable (in the sense of rational) possibility, bearing in mind medical plausibility and the gravity of the consequence of the risk coming home.
The resolution of the foreseeability issue in this case depends upon an answer to the question whether foreseeability in disease cases requires a consensus of expert opinion that harm could occur, or whether the test is satisfied by an informed and reasonable conception that, given the uncertain state of knowledge, harm might occur.
The former view was adopted by Handley JA in CSR Limited v Young (1998) 16 NSWCCR 56 who held that reasonable foresight of dangerous properties in articles of commerce did not extend beyond the limits of current scientific knowledge [64].
This view was not shared by the majority. Giles AJA (with whom Cohen AJA agreed), pointing out [114] that this was the issue that divided the Queensland Court of Appeal in Bale v Seltsam Pty Ltd (QLDCA, No 284/95, 23 August 1995, unreported), preferred the minority view of Fitzgerald P, who said: The critical question in my opinion, is whether the trial judge was correct in her view that the respondent was not under a duty of care until "the link between exposure to low levels of asbestos dust and malignant mesothelioma had been made", i.e, until the respondent had positive knowledge (actual or constructive) of actual risk, or whether, in the circumstances, the uncertainty which existed concerning the toxic effects of asbestos dust and the level of exposure which could induce illness in susceptible persons, and the risk inherent in that uncertainty, was sufficient to create a duty of care i.e., a duty to implement inexpensive and convenient systems to eliminate the possible risk to, and/or warn, those like the appellant who might be affected. Fitzgerald P concluded that the trial judge was wrong. He said that at the end of 1962, because of the known toxicity of asbestos dust, the known uncertainty with respect to its effects, and the knowledge that injury or illness might not emerge for many years, a risk from low exposure could not be dismissed as "remote", "slight", "far-fetched", or "fanciful" or otherwise ignored in the circumstances of that case (the wives of asbestos workers). He did not consider that it was open to CSR to assume that the "low-level" exposure to asbestos dust experienced by persons such as the plaintiff was safe until a " link... with malignant mesothelioma had been made out ".
Although the notion of reasonable foreseeability of risk does not incorporate concepts of likelihood, the imagination required in contemplation of possible risk should be informed by the magnitude of the possible consequences should the risk come home.
In Tame v State of New South Wales [2002] HCA 35; (2002) 211 CLR 317, Gleeson CJ, referring to Wyong Shire Council v Shirt said at [12]: Reference was there made to the rather tendentious description of the requirement of foreseeability as "undemanding"; a description that may be more or less accurate depending upon the context. It is important that "reasonable foreseeability" should be understood and applied with due regard to the consideration that, in the context of an issue as to duty of care, it is bound up with the question whether it is reasonable to require a person to have in contemplation the risk of injury that has eventuated . (Emphasis added)
I find that the risk that Mrs Dunn may contract mesothelioma from childhood exposure to crocidolite fibre released in the course of building renovations was foreseeable.
CSR and Midalco argue that two circumstances militate against the imposition of a duty of care in this case. First, they submit that they had no control over Mrs Dunn (or her parents) of any kind, let alone that which might have enlivened duty of care. Secondly they submit that the class to whom the suggested duty was owed was so large and indeterminate that it was unreasonable to impose a duty to protect all members of that class from the foreseeable harm.
The notion of control in relation to the existence of duty is not necessarily directed to control of a person, be that person the plaintiff or of others whose actions may be causally related to the plaintiff's damage. The control may relate to control of a thing or substance. In Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424, Deane J at 497 said this: The requirement of proximity is directed to the relationship between the parties in so far as it is relevant to the allegedly negligent act or omission of the defendant, and the loss or injury sustained by the plaintiff. It involves the notion of nearness or closeness and embraces physical proximity (in the sense of space and time) between the person or property of the plaintiff and the person or property of the defendant,... and what may (perhaps loosely) be referred to as causal proximity in the sense of the closeness or directness of the causal connection or relationship between the particular act or course of conduct and the loss or injury sustained . (Emphasis added)
Proximity in this case is to be found in the relationship between Mrs Dunn's person and the property and actions of Midalco. There is a direct causal connection between the sale of crocidolite fibre by ABA and Mrs Dunn's injuries. This is not a case in which it is suggested ABA was under a duty to prevent harm arising from some extraneous cause. ABA itself created the risk by selling crocidolite for use in building products. In Sutherland Shire Council v Heyman Brennan J. at 479 said: Thus a duty to act to prevent foreseeable injury to another may arise when a transaction... has been undertaken by the alleged wrongdoer and that transaction... has created... the risk of that injury occurring. Such a case falls literally within Lord Atkin's principal in Donoghue v Stevenson .
I have above delineated the class to whom CSR and Midalco owed a duty. It is no more indeterminate than the class to whom the manufacturers were said to owe a duty in Donoghue v Stevenson . In that case it was every person who consumed a beverage manufactured by the defendant. In this case it is each child who, during formative years, was exposed to crocidolite fibre sold by ABA after June 1965, when, as I will later explain, the Wittenoom mine should have been closed
Other circumstances in this case militate towards the imposition of a duty of care. Mrs Dunn as a child was uniquely vulnerable and without means to protect herself. CSR and Midalco had access to special expertise and knowledge which was not at the relevant time available to the wider community, which included Mr and Mrs Birks. Further, the conduct required in discharge of the duty was conduct required to discharge a concurrent duty owed by CSR and Midalco to the workers employed at the mine.
I find that CSR and Midalco owed a duty of care to the plaintiff Mrs Dunn. 56 It will be seen that the Tribunal identified the class to which the duty of care that it found was owed was constituted by children susceptible because of early childhood development, who suffer transitory exposure to crocidolite fibre in the course of home renovations. Issues on appeal 57 The appellant relies on the following grounds of appeal: 1. The Tribunal erred in finding that the Appellants owed a duty of care to Belinda Dunn, the Plaintiff in Dust Diseases Tribunal proceedings 238 of 2001/1.
(1) Allow the appeal and set aside the judgment of the Dust Diseases Tribunal of 25 June 2008 and the orders made on 8 July 2008.
(2) In lieu of the orders made by the Tribunal, (a) dismiss the cross-claimant's claim for contribution against the cross-defendants; (b) order that the cross-claimant pay the cross-defendant's costs of the proceedings in the Dust Diseases Tribunal on the cross-claim.
(3) Order the respondent to pay the appellants the sum of $375,000 (being the amount paid by them to the respondent as a condition of the stay granted in the Tribunal) together with interest at the rate prescribed by Schedule 5 to the Uniform Civil Procedure Rules 2005 (NSW) calculated from the date of payment to the date on which the amount is repaid by the respondent.
(4) Order the respondent to pay the appellants' costs of the appeal. **********
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.
CSR LTD
AMACA PTY LTD
[2007] WASCA 158
[1996] QCA 288
(1985) 4 NSWLR 139
(1998) 16 NSWCCR 56
(1961) 106 CLR 112
(2002) 211 CLR 317
(1985) 157 CLR 424
[1990] HCA 33
[2001] HCA 30
[1936] HCA 40