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