Supreme Court of WA|2008-02-19|Before: Mr J, Beech J

LO PRESTI -v- FORD MOTOR COMPANY OF AUSTRALIA LTD [No 2] [2008] WASC 12 (19 February 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LO PRESTI -v- FORD MOTOR COMPANY OF AUSTRALIA LTD [No 2] [2008] WASC 12

HEARD : 24, 26-28 SEPTEMBER, 2-5, 8-11, 15, 17 & 18 OCTOBER 2007 (FINAL WRITTEN SUBMISSIONS FILED 4 DECEMBER 2007)

Torts - Negligence - Personal injury arising from exposure to asbestos - Whether duty of care exists - Defendant manufacturer or supplier of cars with brake linings containing asbestos and supplier of such brake parts - Whether risk of injury to professional mechanics foreseeable

Torts - Negligence - Personal injury arising from exposure to asbestos - Whether breach of duty of care - Whether reasonable care called for defendant to give warnings - If so, to whom, in what form and by what means

Torts - Negligence - Personal injury arising from exposure to asbestos - Causation - Whether plaintiff's pulmonary fibrosis arose from exposure to asbestos or is idiopathic

1 The plaintiff suffers from serious fibrosis of his lungs. The plaintiff's case is that his condition is asbestosis and that it was caused by his exposure to asbestos in the course of his work as a motor mechanic. Asbestosis is, by definition, pulmonary fibrosis caused by asbestos. The defendant's case is that the plaintiff's condition is not asbestosis but is a pulmonary fibrosis of unknown cause (termed idiopathic pulmonary fibrosis).

2 The defendant manufactures Ford motor vehicles. It is common ground that during the period 1970 to 1987 (the relevant period) Ford motor vehicles had brake linings which contained asbestos.

3 The plaintiff worked as a motor mechanic for two Ford dealerships in Western Australia from 1970 to 1987.

4 The plaintiff claims damages for the tort of negligence. He claims that his asbestosis was caused by the failure of the defendant to warn of the dangers of working with brake linings containing asbestos and of the need to take measures to prevent or minimise the release and inhalation of asbestos dust and fibres.

5 The defendant raises issues in relation to all three of the elements of the tort of negligence: duty, breach and causation. The major groups of issues arise in relation to the questions of duty and of causation.

6 The parties have agreed the quantum of damages at $840,000.

7 It is convenient to begin by outlining some background facts, which are largely uncontroversial, before turning to the pleadings to identify the issues raised.

8 The plaintiff was born on 9 July 1949 in Sicily. He left school at the age of 11 and commenced an apprenticeship as a motor mechanic. His apprenticeship was with a motorcycle dealership. He continued working there until 1970. He was not aware of any exposure to asbestos in that employment and none was suggested in evidence at the trial.

9 There is no evidence of any specific exposure to asbestos outside the plaintiff's work as a mechanic from 1970 onwards.

10 In 1970, when he was 20, he migrated to Australia.

11 After he arrived in Australia he obtained employment with Anderson Ford, then located at 151 Adelaide Terrace in Perth. He worked as a mechanic for Anderson Ford from 1970 to 1975.

12 For the first two or three years of his employment with Anderson Ford he worked in the main workshop. This was a large workshop where dozens of mechanics worked performing a range of repairs and services to vehicles.

13 There was no mechanical ventilation in the workshop.

14 A number of issues arose in the course of the trial as to the extent and frequency of the activities by which asbestos dust was said by the plaintiff to have been generated in the workshop. The evidence in this regard will be analysed in more detail later in these reasons. At this stage I propose only a general outline.

15 In the course of servicing cars, the brakes were checked. This did not occur on all services, but did occur for 'major' or 'big' services. In the course of checking the brakes, the wheels and brake drums were removed and both the brakes and the drums were blown with compressed air. (Dust from within the brake drums would be blown out in the course of this.)

16 In the 1970s and 1980s, Ford motor vehicles were fitted with brakes lined with a friction material that included asbestos, of the type known as chrysotile. There are two main groups of asbestos: serpentines, which include chrysotile, and amphiboles, which include crocidolite and amosite. The risk of contracting cancer from exposure to asbestos varies according to the type of asbestos fibre. Chrysotile gives rise to the least risk; then amosite, then crocidolite.

17 The friction material was embedded in resin and bonded to metal brake shoes for use in drum brakes. In the case of vehicles fitted with disc brakes, the friction material was bonded to a metal backing plate for brake pads used in the disc brakes.

18 The defendant led expert evidence that the heat generated in the course of the braking process caused the breakdown of the vast majority of the asbestos in the friction material into non-fibrous material including forsterite. This evidence will be referred to further when I give consideration to the question of the level of exposure of the plaintiff to asbestos.

19 In the course of servicing vehicles, brakes were also, on occasion, rubbed with emery paper, a rough sandpaper-like cloth. There is also mention in the evidence of the need, from time to time, to chamfer or file the edge of a new brake lining to ensure it fitted correctly.

21 For about two years, from 1973 to 1975, the plaintiff worked in a designated area known as the 'Quick Service area'. This was a smaller separate area with enough room for four vehicles.

22 As the name suggests, the purpose of the Quick Service area was for as many cars as possible to be serviced each day. A team of five men worked in the Quick Service area. One man was in the pit underneath the two cars, one man worked on the wheels, one man did the 'lubes', with another two doing the motors. There was also a supervisor.

23 Substantially the same tasks relevant to this case were undertaken in the Quick Service area. They were done in a more confined area and at a greater speed. The Quick Service area was very dusty.

24 The plaintiff did not know that the brake linings contained asbestos and did not know or believe that inhalation of the dust could be hazardous and that steps should be taken to reduce any exposure and inhalation. Nor did his workmates at Anderson Ford.

25 In 1975 the plaintiff left Anderson Ford. He moved to a small country town in Western Australia called Narembeen. For about six months he worked on a wheat farm, assisting his father-in-law.

26 He then returned to work as a motor mechanic. From late in 1975 until 1988 he worked as a mechanic for Col Commons & Son in Narembeen. Col Commons was a Ford dealership.

27 At Col Commons the plaintiff did a wide range of mechanical work. He worked primarily on cars and occasionally on trucks.

28 Compressed air was used to blow out the brakes of cars in the course of servicing them. If the brakes were glazed, emery paper was used to rub them down.

29 The workshop would be swept at the end of the day.

30 In 1988 the plaintiff left Col Commons and returned to Perth. He worked in a service station as a mechanic from 1988 to 1994. This service station did not service Ford vehicles exclusively.

31 In 1994 the plaintiff commenced worked at Tom's Auto Repair in Osborne Park as a mechanic. At Tom's Auto, different procedures were used in the course of servicing brakes. Brakes were washed out with water. Compressed air was not used.

32 When the plaintiff used compressed air on the first day of his job at Tom's Auto, his employer told him that compressed air was not to be used and that water was used instead. The employer said that compressed air was dusty and dangerous.

33 Before that, the plaintiff did not know (or believe) that exposure to brake dust and fibres was or might be dangerous and that measures should be taken to reduce the generation and inhalation of dust.

34 Until the late 1990s the plaintiff was an active man in good health. He enjoyed boating, fishing and gardening (among other things).

35 The plaintiff described that in the late 1990s he noticed that he would become tired and breathless.

36 His medical records (exhibit L) reveal that he saw his general practitioner Dr Angelo Carbone in March 1997 on account of coughing and having a wheezy chest. An antibiotic was prescribed and a description of the problem as 'bronchitis and bronchiolitis, acute' was recorded.

37 The plaintiff saw Dr Carbone again twice in July 1999. He described having been short of breath on exertion for two months. Bibasal crepitations (crackling sounds) were recorded as having been heard on examination.

38 In March 2000 he spent some days as an in-patient at St John of God Hospital in Subiaco. The records suggest that the reason for admission was that the plaintiff had been struck in the face by an object at work. Chest x-rays taken at this time were recorded as suggesting some changes in the left lower lobe consistent with bronchopneumonia.

39 The plaintiff referred in his evidence to having spent a week or so in St John of God Hospital. He thought that that was in 1998 but when questioned in cross-examination he was, understandably, unsure of the dates. He is likely to have been referring to his admission in March 2000.

40 In September and October 2000 the plaintiff saw Dr Bernard Hockings, a cardiologist. Medication was prescribed to attempt to lower the plaintiff's high blood pressure.

41 In the course of the year 2000, the plaintiff saw Dr Carbone on occasions. There were continued references to feeling tired and having a cough. Bibasal crepitations were recorded. Further chest x-rays were done.

42 There were considerable further investigations during the first half of 2001, including further radiological examination.

43 In June 2001 Dr Carbone referred the plaintiff to Professor Bruce Robinson, a consultant chest physician.

44 In July 2001 Professor Robinson diagnosed the plaintiff as suffering from asbestosis.

45 The plaintiff stopped work, because of his poor health, in September 2001.

46 The plaintiff has become substantially disabled from leading a normal life by his condition. He requires oxygen 24 hours a day. His breathlessness is continuing to get worse, as is his condition generally.

47 The defendant is, indirectly, a wholly owned subsidiary of Ford Motor Company (Ford US). There is and at all relevant times was also a Ford company operating in Britain called Ford Motor Company Limited (referred to at trial as Ford UK).

48 I turn to the pleadings and to the identification of the major issues in the trial of this action.

49 The plaintiff pleads that in the course of working as a motor mechanic at Anderson Ford between 1970 and 1975, and Col Commins between 1975 and 1987, he handled and cleaned asbestos brake linings and components and was exposed to and inhaled asbestos dust, particles and fibres.

50 In the particulars it is said that, in the course of servicing vehicles, the plaintiff would use compressed air to blow the dust from each brake drum, would inspect, remove and replace asbestos brake linings, and would handle asbestos brake linings by filing or grinding back the edges to enable them to be fitted into the brake drum. Further, it is said that his work duties included regularly dry sweeping the floor of the work areas after vehicles had been serviced. Fellow employees also cleaned, handled and worked with asbestos brake linings and components, and the plaintiff worked in the vicinity of these employees.

51 The defendant denies that filing and grinding occurred but otherwise admits that the alleged activities occurred, but without any admission as to the regularity or frequency of the sweeping.

52 The plaintiff puts his negligence case in two alternative ways. First, he sues the defendant as the manufacturer of the brake linings or of the vehicles fitted with the brake linings. Secondly, he sues the defendant as the supplier of the vehicles containing the brake linings and components and as the supplier of brake spare parts.

53 The defendant denies any role in the manufacture of any brake linings or brake components. It admits that various motor vehicles manufactured by it were fitted with brake linings containing asbestos but denies that any other brake component in vehicles manufactured by it contained asbestos.

54 The defendant admits that from time to time during the relevant period it supplied brake linings containing asbestos to its licensed dealers and distributors, but denies that it supplied any other brake component containing asbestos.

55 The alleged duties of care as manufacturer and supplier are pleaded in corresponding terms in par 6 and in par 10 of the statement of claim respectively. Each is built upon a foundation of what it is said that the defendant knew or ought to have known. In summary, it is pleaded that the defendant knew or ought to have known that:

(a) inhalation of asbestos fibres and dust was extremely injurious to human health and caused diseases including asbestosis, lung cancer and mesothelioma;

(b) the asbestos brake linings and components manufactured or supplied by it, or contained in vehicles manufactured by it, would, in the course of cleaning, handling and working, be likely to release asbestos fibres and dust;

(c) persons working as motor mechanics would be exposed to asbestos fibre and dust as a result of cleaning, handling or working of the brake linings and may suffer injury unless measures were taken to prevent or minimise the release and/or inhalation of asbestos fibres and dust;

(d) if the defendant did not provide warnings, it was unlikely that any sufficient measures would be taken to prevent the release of asbestos fibres and dust and inhalation by mechanics.

56 Three sets of detailed particulars have been provided of the facts relied upon in alleging that the defendant knew or ought to have known the matters pleaded in par 6 and par 10 of the statement of claim. I do not propose to detail them here.

57 The defendant admits that, by 1970, it knew that exposure to certain types of asbestos fibre, in sufficiently large quantities and duration, could cause asbestos related disease. However, it denies that it knew (or that it was the case) that exposure of the kind claimed by the plaintiff would, or could, increase his risk of contracting any asbestos related disease.

58 The duty of care said to arise as manufacturer or supplier of the asbestos brake linings and components or vehicles which included asbestos brake lining is pleaded in corresponding terms. In substance, the duty is said to be to take all reasonable care to give two categories of warnings: first, a warning to motor mechanics and/or their employers that handling, working and cleaning asbestos brake linings and components was extremely injurious to health and caused diseases including asbestosis and mesothelioma; secondly, to issue warnings to motor mechanics and/or their employers that it was essential that measures be taken when handling, cleaning or working with asbestos brake linings to prevent or minimise the release of asbestos dust and fibres into the atmosphere and their inhalation.

59 It can be seen, therefore, that the pleaded duty of care is in terms of a duty to warn, rather than a more general duty to avoid foreseeable risk of injury to mechanics.

60 It is then pleaded that the defendant negligently exposed the plaintiff to the risk of inhalation of, and to the actual inhalation of, asbestos dust and fibres. The particulars of negligence complain of five failures:

(a) the failure to warn the plaintiff and his fellow employees who cleaned, handled and worked with asbestos brake linings against using compressed air to clean brake drums, against filing and grinding asbestos brake linings and components, and against dry sweeping work areas in which asbestos brake linings and components were cleaned, handled and worked;

(b) failing to warn the plaintiff's employers, as receivers or purchasers of asbestos brake linings and components, against those matters;

(c) failing to advise the plaintiff and fellow employees of appropriate safety measures; namely using wetting or damping down cleaning methods; using an industrial vacuum cleaner with an adequate filter system; and using a respirator when handling, filing, grinding or cleaning asbestos brake linings and components;

(d) failing to advise the plaintiff's employers of those matters; and

(e) failing to warn the plaintiff, his employers and his fellow employees of the risks and dangers of asbestos inhalation, including the risks of asbestosis, lung cancer and mesothelioma.

61 It is pleaded that as a result of the alleged breaches of duty the plaintiff suffered injury, namely asbestosis and other problems.

62 The defendant denies that the plaintiff's injuries are caused by his inhalation of asbestos from brake linings manufactured or supplied by the defendant or by the defendant's negligence. Further, the defendant says that the plaintiff is not suffering from asbestosis but suffers from lung fibrosis of an idiopathic nature.

64 First, there are issues whether the defendant owed any duty of care to the plaintiff and, if so, issues as to the content of that duty. There are both factual and legal issues in that regard. The factual issues relate to what the defendant knew or ought to have known or foreseen as to the risks to motor mechanics arising from the presence of asbestos in brake linings.

65 Secondly, there are issues respecting the question of breach of any duty of care. Did reasonable care on the part of the defendant require it to give any warnings and, if so, by what means, in what terms, and to whom?

66 Thirdly, there are a number of issues concerning the question of causation. Most fundamentally, there is a diagnosis related causation issue: is the pulmonary condition from which the plaintiff suffers asbestosis, or is it of an idiopathic nature? The parties invite attention to evidence relating to a number of topics as being relevant to this question, including the following:

(a) evidence of lay witnesses, including the plaintiff, as to the activities which occurred in the course of the plaintiff's work as a motor mechanic, and the extent to which and circumstances in which he was, in that context, exposed to asbestos fibres;

(b) evidence from occupational hygienists who provided estimates of the level of exposure to asbestos fibres experienced by the plaintiff;

(c) expert evidence as to whether there was any threshold exposure level below which it is accepted that asbestosis will not occur;

(d) epidemiological evidence as to whether there is any association between work as a motor mechanic and the level of incidence of asbestos related diseases including mesothelioma, lung cancer and asbestosis; and

(e) expert medical opinion relating to whether the plaintiff's condition is asbestosis or is idiopathic in nature.

67 It is convenient to begin by making factual findings, based upon the evidence of the lay witnesses, in relation to the plaintiff's work as a motor mechanic and the frequency of those activities undertaken which gave rise to exposure to asbestos and associated topics. Thereafter, I propose to deal in turn with the issues of duty, breach and causation.

The plaintiff's work exposure to dust during the relevant period

68 The plaintiff gave evidence regarding his work environment at Anderson Ford and at Col Commons during the relevant period. He called four other witnesses who had worked at Anderson Ford: Mr Ian Hinkley, Mr Kenneth Hood, Mr Giuseppe (Joe) Lenzo and Mr Colin Bushby.

69 Mr Hinkley worked at Anderson Ford from 1969 to 1999. (At some stage during this period, subsequent to the plaintiff's departure from Anderson Ford, the business name changed to Centre Ford). Mr Hinkley was the supervisor of the Quick Service section for the whole of the time that the plaintiff worked at Anderson Ford.

70 Mr Hood worked for Anderson Ford from 1969 to 1979. Until 1974 he spent most of his time in the general workshop, with short periods in the Quick Service section. From 1974 to 1979 he worked in the Quick Service section. When Mr Hinkley was away, Mr Hood deputised as the Quick Service supervisor. Mr Hood was cross-examined on very few aspects of his evidence.

71 Mr Lenzo worked at Anderson Ford from 1968, where he started as an apprentice, until 1987. He spent some of his time in the Quick Service area and worked there with the plaintiff. He was not cross-examined.

72 Mr Bushby worked for Anderson Ford/ Centre Ford, for some 18 years. His recollection was that he started work at Anderson Ford in about September 1975. From his commencement at Anderson Ford he worked in the Quick Service area. He was unable to put a face to the name of the plaintiff and was, in the end, unsure of whether they had both worked at Anderson Ford at the same time (ts 343, 361 - 362).

73 The defendant submits that it should be concluded that Mr Bushby commenced work at Anderson Ford after the plaintiff left and that, consequently, his evidence is of no assistance. I accept the first part of that submission but do not accept the second part of it. The tenor of the evidence of the other witnesses who worked at Anderson Ford through the 1970s and 1980s seems to me strongly to support a conclusion that there were few, if any, changes of substance in the relevant work practices and environment between 1974 and 1975 and in the years shortly thereafter. Of course, if and to the extent that Mr Bushby's evidence is materially different in a given respect from the evidence of those working at the time the plaintiff worked, I would rely upon the evidence of those working with the plaintiff. However, insofar as Mr Bushby gave evidence which is generally consistent with the others, while fleshing out or explaining matters in more detail than other witnesses, it seems to me that Mr Bushby's evidence is of assistance.

74 Leaving aside the plaintiff, there was no suggestion, in cross-examination or submissions on behalf of the defendant, that any of the lay witnesses called on behalf of the plaintiff were doing other than giving their best recollection of the working conditions which they experienced and observed and of the other matters the subject of their evidence.

75 There was no challenge, in the course of cross-examination, to the credibility of the plaintiff. In closing submissions the defendant submitted that the plaintiff's estimates of the mix of work done and the number of cars worked on and matters of that kind were estimates 'made in hindsight with the obvious incentive of financial reward'. I do not consider that the plaintiff was influenced, in his evidence as to his work practices, by any tendency, conscious or unconscious, to maximise his exposure to dust in order to assist his case. In that regard his evidence was supported by and consistent with the other witnesses who worked at Anderson Ford. For example, other witnesses gave descriptions of the level and intensity of the dust which were as vivid and graphic as those given by the plaintiff.

76 Unsurprisingly, the witnesses' evidence was not to identical effect in all respects. On matters of detail, there were some differences.

77 On the basis of the evidence of the five witnesses, I make the following findings of fact in respect of the plaintiff's work at Anderson Ford.

78 From 1970 until 1973 (or perhaps late 1972) the plaintiff worked in the main workshop at Anderson Ford. In the main workshop there were 15 car bays and up to that number of cars would be worked on at one time. About 40 to 50 cars per day were done in the workshop.

79 Approximately 50% of cars serviced received what was called a 'big' service, with the other 50% having a 'small' service. Brake work was done on big services but not in the course of small services.

80 In the course of a big service, the brakes would always be removed, 'de-dusted' and checked. The de-dusting process involved removing brake drums, tapping them on the floor to remove some of the dust, blowing them out with compressed air and then blowing out the wheels with compressed air. The plaintiff described the generation of dust in this way in par 27 of his witness statement (exhibit 3A):

When I used compressed air to blow out the brakes it would generate large amounts of dust containing asbestos which would blow up into my face and stick to my clothes and hair. It would cause a cloud or haze in the air and fall down in the area where I was working. The dust would get stirred up as I worked in it. The same would happen when the men beside me blew out brakes too, or anywhere else in the building. Sanding and filing the shoes would also cause asbestos dust.

See also ts 287; the evidence of Mr Lenzo at exhibit 10 par 12; and the evidence of Mr Hinkley at ts 309 - 310.

81 If, on inspection, the brakes were glazed, they would be rubbed back with emery paper, so as to roughen them up and prevent squeaking (exhibit 3A par 25, see also ts 248 - 249).

82 Further details and descriptions of the process of rubbing brakes with emery paper were given by Mr Hinkley and Mr Bushby. The evidence was given in the context of work in the Quick Service section but seems to me to be of general application. Mr Hinkley said that emery paper was used in about 50% of brake services to give the pads and the drum 'a hell of a rub' which created 'tons of dust' (exhibit 5 par 30). See also Mr Bushby's evidence at ts 351, 368.

83 Sometimes, when a new set of brake shoes was being installed, the edge of the shoe and lining would be chamfered or filed off (see exhibit 3A par 27, exhibit 5 par 31 - Mr Hinkley; and the evidence of Mr Bushby at ts 349 - 350).

84 The workshop would be swept, generally at the end of the day, at least if time permitted.

85 The bulk of the detailed evidence regarding the plaintiff's exposure to dust related to the Quick Service section, to which I turn.

86 The Quick Service workshop was small and unventilated. A large number of cars were serviced each day. Several witnesses said that they would often service up to 40 cars per day. Mr Hood said that in Quick Service they got through about 40 cars per day (exhibit 9 par 8). He was not cross-examined in that respect. Mr Lenzo said that it was pretty common for them to get through 40 cars a day in Quick Service (exhibit 10 par 7). He was not cross-examined. See also Mr Bushby's evidence at ts 345.

87 The defendant's submissions fixed on evidence of the plaintiff, in cross-examination, to the effect that he estimated that it took them one hour to do a small service and three hours to do a big service. The defendant submits that 40 is an unrealistically high number of cars to service in one day.

88 The plaintiff's evidence as to these estimates was, it seemed to me, directed to the question of the expected or permitted estimate of time for these tasks upon which the charge to the customer was calculated. I refer to the plaintiff's evidence in re-examination (ts 290) and to the evidence of Mr Hinkley explaining the way in which those working in Quick Service were remunerated based upon the estimated or permitted time for the service (see exhibit 5 pars 11 - 14).

89 While no doubt the number of cars serviced in a given day varied, I accept that it was not uncommonly in the region of 40 and, at other times, somewhat less.

90 As in the main workshop, the processes of using compressed air to remove dust, sanding brake shoes and, from time to time, filing brake shoes all created dust in the Quick Service workshop.

91 Something more than half of the cars that came through the Quick Service section had their brakes checked, and thus de-dusted, using the compressed air as already described.

92 Mr Lenzo described the creation of dust in the Quick Service area. He said as follows (exhibit 10 par 12):

The way it actually happened is that you would pull the drums off and tap them on the floor and get all the dust out on the floor and then blow out the wheels and then you would even blow the dust away from around you. There was so much of that dumping of dust and blowing out during the day that as the day wore on there would be more and more asbestos dust around and you would be blowing out not just the dust out of the drum that you were taking out but all the other dust that had accumulated around you.

93 The brakes on about half of the cars having their brakes serviced would be rubbed with emery paper, as already described.

94 The evidence of all the witnesses who worked in the Quick Service area was to the effect that it was an extremely dusty environment. Mr Hinkley said that 'lots of dust was being blown up into the air and into the pit. There was heaps of dust and you could see it in the air. You would often get it in your mouth and your teeth and up your nose and in your hair and everywhere' (exhibit 5 par 34). See also the evidence of Mr Hinkley (exhibit 5 pars 29, 37), Mr Hood (exhibit 9 par 9), the plaintiff (exhibit 3A pars 37, 41) and Mr Bushby (ts 346, 354).

95 The room did not have any mechanical ventilation and had poor natural ventilation. There were walls on three sides of the room. One wall partitioned the Quick Service area from the main workshop. This wall was solid except for an area of mesh at the top. There were high windows on one of the other walls. Those windows opened only partially and did not allow much natural ventilation. See, in this regard, the evidence of Mr Lenzo (exhibit 10 par 8) and Mr Bushby (ts 343, 378).

96 The dust was not removed in the course of the day. Accordingly, and given the lack of ventilation, the dust accumulated in the course of the day.

97 There were regular complaints about the dust. In response, the only thing that was done was that some fans were provided. These provided some relief from the heat but merely kept the dust airborne without removing it.

98 Five men worked in the Quick Service section. One was on wheels. He was responsible for the work on the brakes. Another was in the pit. The person on wheels was most exposed to the dust. The pit was also very dusty. But the Quick Service workshop as a whole was a very dusty environment. Dust would cover Mr Hinkley's desk in the corner of the room.

99 The evidence in the witness statements was to the effect that the plaintiff rotated between the five tasks but spent a higher proportion of his time on the brakes because he was short and worked fast on the wheels. However, the evidence of both the plaintiff and Mr Hinkley, in the course of cross-examination, was to the effect that the plaintiff did one week in five on the wheels. See the plaintiff's evidence at ts 267 and Mr Hinkley's evidence at ts 306 and, especially, at ts 308, where Mr Hinkley was asked, in plain terms, whether the plaintiff took his part in the rotation and did one week in five like each other person, to which he answered yes. I have not overlooked the evidence of Mr Hinkley in re-examination at ts 317 - 321, upon which reliance is placed by the plaintiff. However, I am not satisfied that the plaintiff spent the majority of his time on wheels, although he may well have spent a little more time in that role than in other roles.

100 The accumulated dust was, generally, swept once a day, mostly at the end of the day. If time did not permit sweeping to occur at the end of the day this may be done in the morning. There was also evidence that, at least on some occasions, a hose was used in the sweeping process.

101 Disc brakes were also de-dusted with compressed air. However, they did not accumulate dust to the same extent, and so released less dust in the process of cleaning.

102 Some attention was given, in the evidence and in cross-examination, to the question of the relative proportion of cars serviced which had disc brakes as distinct from drum brakes.

103 By the mid-1970s virtually all new Ford vehicles had disc brakes installed on the front wheels. However, according to Mr David Ford, a witness called by the defendant, there would, in that period, still have been 'lots and lots' of vehicles with drum brakes at front and back (ts 734).

104 The evidence of those who worked at Anderson Ford as to the distribution of drum brakes and disc brakes in the first half of the 1970s was not consistent. Mr Hinkley and Mr Hood said that most cars had disc brakes at the front (ts 314, 317, 332). The plaintiff thought that the majority of cars, around 60% to 70%, had drum brakes at the front (as well as at the back) (ts 243). Mr Bushby's evidence was that when he started work there were predominantly drum brakes on the front wheels (ts 347). Mr Hinkley and Mr Hood both worked for Anderson Ford for extended periods which spanned the early and late 1970s. By contrast, Mr Bushby did not commence until 1975. On balance, I consider that Mr Bushby's evidence as to the position when he commenced is likely to be reliable. Mr Hood and Mr Hinkley may well be identifying the position as at a later time, rather than during the first half of the 1970s.

105 Accordingly, I find that the majority of cars serviced at Anderson Ford while the plaintiff worked there had drum brakes both at the front and back of the vehicle.

106 The only evidence respecting the 11 years during which the plaintiff worked at Col Commons was the evidence of the plaintiff himself.

107 The plaintiff said it was common practice to use compressed air to blow out the brake drums while he was working at Col Commons. He estimated that he blew the drums on every second car that he worked on (exhibit 3A par 68). If the brakes were glazed, he would use emery paper to rub them down (exhibit 3A par 69). He estimated that he would change a set of brakes twice a week on average, and would service three or four cars a day, using compressed air on two of them on average (exhibit 3A par 72).

108 In cross-examination he acknowledged that by the 1980s more cars had disc brakes at the front (ts 275).

109 He also described in some detail the work which would be done on the brakes of trucks. I accept his evidence in that regard. However, given his evidence that the brake linings on a truck were replaced only two or three times a year (ts 276), this is not of great significance.

110 The workshop floor would be swept at the end of the day, either by the plaintiff or by an apprentice if there was one.

111 I turn to the question of whether the defendant owed a duty of care to the plaintiff.

112 It is convenient to begin with some relevant general principles.

113 The well known dictum of Lord Atkin in Donoghue v Stevenson [1932] AC 562, 580 remains relevant to the question of identification of persons to whom a duty of care is owed. In Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 [9], Gleeson CJ observed that it is the reasonableness of a requirement that a defendant should have certain persons and certain interests in contemplation that determines the existence of a duty of care.

114 In general terms, a necessary, but not sufficient, condition of the existence of a duty of care is reasonable foreseeability by the defendant of the kind of injury that has been suffered by the person to whom the duty is owed: Tame [12]; Amaca Pty Ltd v Hannell [2007] WASCA 158; (2007) 34 WAR 109 [299]. Reasonable foreseeability is to be understood and applied with due regard to whether it is reasonable to require a person to have in contemplation a risk of the kind of injury that eventuated: Tame [12].

115 The 'kind of injury' which must be foreseeable is a reference to the different categories of injuries such as personal injury, property damage or pure economic loss. The particular injuries suffered need not be foreseeable: Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383, 402; Amaca Pty Ltd v Hannell [299].

116 In Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307, 332 the New South Wales Court of Appeal held that it was not necessary for the plaintiff to prove that it was foreseeable that he might contract the particular injury of mesothelioma from the asbestos exposure of which he complained. It was sufficient that he could contract an injury of the kind which he suffered, namely personal injury from the inhalation of asbestos.

117 In deciding whether the defendant owed the plaintiff a 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 or her conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 47.

118 A risk of injury which is remote, in the sense that it is extremely unlikely to occur, may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable: Wyong Shire Council v Shirt (48); Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 [60]; Amaca Pty Ltd v Hannell [300].

119 The test of reasonable foreseeability is to be applied at the time of the alleged breach and thus without hindsight: Amaca Pty Ltd v Hannell [301]; Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209 [143].

120 In Bendix Mintex the New South Wales Court of Appeal held that a plaintiff does not have to show that the particular asbestos fibre type (there, as here, chrysotile) was known to be dangerous (332). If that approach is adopted the task of the plaintiff in establishing a duty is thereby made less onerous, given that the type of fibre here is the least dangerous. However, in the light of the factual findings I make, it is not necessary to decide whether that approach ought be taken on the foreseeability question.

121 The plaintiff invited my attention to findings of foreseeability, in respect of the hazards of asbestos, in numerous decided cases. For example, in EM Baldwin & Son Pty Ltd v Plane (1998) 17 NSWCCR 434, Fitzgerald AJA referred to other decisions of the New South Wales Court of Appeal, including CSR Ltd v Young (1998) 16 NSWCCR 56, in which it was accepted 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, give rise to a risk which could not be dismissed as remote, slight, far-fetched or fanciful [110].

122 Similarly, it has been observed that foreseeability can turn on knowledge of the dangers of any exposure to asbestos, including in the calculus for breach of duty, and is not confined to knowledge of the dangers of exposure to high levels of asbestos or levels of asbestos above any particular standard: Julia Farr Services Inc v Hayes [2003] NSWCA 37; (2003) 24 NSWCCR 138 [125] (Giles JA). In that case Spigelman CJ agreed with Giles JA and observed [2] that decisions of the New South Wales Court of Appeal established the proposition that breach of duty can be made out on the basis that there was no known safe dose of asbestos, taking into account the test of foreseeability enunciated in Wyong Shire Council v Shirt.

123 However, the conclusion that, in a particular case, a particular hazard was found to be foreseeable is a fact-based conclusion derived from the evidence in the particular case; it is not a conclusion of law. See, for example, Julia Farr Services [106] - [110]. The same point was made in relation to decisions on the question of breach of duty by Gleeson CJ and Kirby J in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 [2] - [4].

124 Of course, that is not to say that decided cases are not of assistance in relation to questions of the existence and scope of duty of care. To the contrary, where the existence and scope of a duty of care is settled by authority it is unnecessary to identify and apply the legal principles that govern the determination of those questions (see, for example, Amaca Pty Ltd v Hannell [348]). Whether a duty of care arises from given facts is a question of law: Vairy [62].

125 The plaintiff invokes general principles respecting the duty of care of a manufacturer and a supplier. It is well established that a manufacturer owes a duty to a consumer to take reasonable care to prevent the product causing injury to a consumer: Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 [29]. In Amaca Pty Ltd v Hannell [354] there was reference to the manufacturer's duty to take reasonable care to avoid injury being suffered by persons using the product in an intended or normal way. See also CSR Ltd v Wren (1997) 15 NSWCCR 650, 655.

126 The question is, however, as to the scope of the class of persons to whom the duty is owed. The duty is owed only to those in respect of whom it is reasonably foreseeable that injury or harm might result. In Amaca Pty Ltd v Hannell, for example, the factual conclusion (at [347]) on foreseeability of harm to the home handyman, favourable to the plaintiff, in the joint reasons of Steytler P and McLure JA was the foundation for the duty of care found by their Honours in that case.

127 In the same way, reasonable foreseeability of the risk of harm to motor mechanics is a critical factual foundation of the plaintiff's case on duty of care. If that factual foundation is made out it seems, contrary to some of the submissions on behalf of the defendant, a small step to find that a duty of care arose. If (and only if) reasonable foreseeability of harm to mechanics is established, mechanics thereby become one of the classes to whom the manufacturer or supplier of vehicles fitted with asbestos brake linings or of brake lining spare parts owed a duty to take reasonable care to avoid the product causing injury.

128 Both parties accepted that the question of reasonable foreseeability was significant to whether the defendant owed a duty of care to a class of persons of which the plaintiff was a member. However, the parties appeared to differ as to what it was that was required to be foreseeable, in order that a duty of care arose.

129 The duty of care pleaded by the plaintiff is said to be owed to motor mechanics. In the course of opening, counsel for the plaintiff specified that that was intended to refer to professional motor mechanics.

130 The plaintiff submitted that the foreseeability question is whether the defendant ought reasonably to have foreseen a possibility of asbestos inhalation injury from asbestos exposure to mechanics as a result of working with Ford vehicles with asbestos in the brake linings, and that such possibility was not far-fetched or fanciful (no matter how unlikely).

131 The defendant submitted that the question of foreseeability was whether it was reasonably foreseeable by the defendant that a motor mechanic might contract an asbestos related disease as a consequence of exposure to the level or quantities of asbestos associated with his working on brakes fitted to the defendant's vehicles.

132 The plaintiff took particular issue with the reference, in the defendant's formulation, to 'the level of asbestos'. The plaintiff contended that there was no necessity to foresee any particular level in order that a duty of care arises. Insofar as the reference to a level is intended to refer to a specific numerical level, I accept the plaintiff's submission that such is not required.

133 On the other hand, I accept that, in determining whether the defendant owed a duty of care to professional mechanics, regard is to be had to the extent of exposure of mechanics which might foreseeably arise from asbestos dust and fibres released from asbestos in brake linings. If, having regard to that, and taking into account what was known or believed at the time, harm to mechanics was not reasonably foreseeable, no duty of care would be owed to mechanics.

134 Of course, in taking account of the extent to which mechanics might foreseeably be exposed to asbestos from brake linings, account must be taken of the wide range of possible work practices and environments, and of the prospect that a mechanic may work on servicing and changing brakes on Ford vehicles for many decades.

135 In short, what must have been reasonably foreseeable by the defendant is that a professional motor mechanic might contract an asbestos inhalation disease arising from the release of asbestos from the brake linings of Ford vehicles.

136 The duty of care pleaded by the plaintiff is expressed as a duty to give warnings. That invites attention to the question of the particularity of the formulation of a duty of care. A duty of care should not be formulated with such particularity as has the effect of obscuring the proper inquiry into the reasonable response to a foreseeable risk at the breach stage of the analysis: Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [191] - [192].

137 In some cases the duty question involves a determination of whether a defendant owes the plaintiff a duty to warn. That may be the position in novel situations where a more general formulation of the duty would be at such a high level of abstraction as to be of no practical assistance. See the discussion in Amaca Pty Ltd v Hannell [350] - [352]. If that occurs, the duty analysis must take account of the same considerations as are relevant in determining whether the specific breaches relied on would constitute a breach of any duty however formulated.

138 Ordinarily, the question whether the provision of a warning is within the scope of a duty of care in a particular case is determined at the breach stage of the analysis, by assessing whether a failure to warn constitutes a breach of duty: see Amaca Pty Ltd v Hannell [353] and cases there cited. However, as is there remarked, the result should be the same regardless of the approach.

139 I will return to those issues in the course of stating my conclusions in respect of the duty issue.

140 That brings me to the evidence as to whether it was reasonably foreseeable by the defendant that, if no protective measures were taken, professional mechanics might be at risk of contracting an asbestos inhalation injury or disease arising from the release of asbestos from the brake linings of Ford vehicles.

141 An enormous volume of evidence was tendered by the parties in relation to the issue of what the defendant knew, or should have known, or reasonably foreseen as at 1970, and during the period from 1970 to 1987.

142 By way of overview, the plaintiff relied upon the following main categories of evidence:

(b) various items of evidence bearing upon what the defendant knew;

(i) knowledge of the foreign companies was said to be attributable to the defendant because of common directorships or senior executives within those organisations;

(ii) alternatively, knowledge held by Ford US and Ford UK was part of what the defendant ought to have known, because such information was readily available to it in the circumstances calling for inquiry by the defendant; and

(d) expert evidence as to readily available information regarding the hazards of asbestos, said to be supported by voluminous scientific literature and other publications tendered by the plainitff.

143 The plaintiff's claim is that the defendant owed him a duty from 1970 through to 1987. That being so, the question of the actual or constructive knowledge of the defendant falls to be determined, first, as at 1970, and, then, throughout the period from 1970 to 1987. Much of the evidence relied upon by the plaintiff as to what the defendant knew, and as to what Ford US and Ford UK knew, pertains to the period from 1970 to 1987. Very little of it bears on the position as at 1970.

144 The defendant led very little evidence as to what it knew regarding asbestos and the brake linings used in its vehicles and supplied by it. Substantially the only evidence led by the defendant in this regard was the evidence of Mr Ford, a former senior executive of the defendant. Although he worked for the company from about 1969, his evidence as to the defendant's relevant knowledge related primarily to the period from 1980 onwards.

145 Given that there appears to be little evidence bearing directly upon what Ford knew, as at 1970, the question of what Ford knew, at that time, will, it seems to me, overlap to a significant degree with what the defendant ought to have known at that time. The subject matter, source and circumstances of publication of some matters may (or may not) give rise to an inference that the defendant knew of them, as well as to (or not) a conclusion that the defendant ought to have known of them. In any case, it is sufficient for the plaintiff to establish that the defendant either knew or ought to have known of relevant matters.

146 The defendant's case in respect of foreseeability relied on the following main categories of evidence:

(a) expert evidence, primarily from Dr Dennis Paustenbach and also from Mr Alan Rogers;

(b) scientific and other literature relied upon by those experts as supporting their views; and

(c) a bundle of material (exhibit W) containing documents regarding threshold limit values for asbestos between 1970 and 1987 and setting out legislative and regulatory duties of occupiers of premises between 1970 and 1987.

147 The plaintiff points to admissions made by the defendant. In the course of the trial, senior counsel for the defendant made the following admission on its behalf (ts 456):

The defendant accepts that it understood or knew, if you wish, that there was asbestos in brake linings and it knew also that in a general sense if there was sufficient exposure of asbestos to people occupationally exposed, asbestos related disease could result. Those admissions are plain and we don't resile from that.

148 It was, plainly, foreseeable by the defendant that motor mechanics who serviced and repaired Ford vehicles would, in the course of so doing, service, clean, install and replace brakes. It did not appear to be in dispute that Ford was aware of the various steps involved in servicing and repairing Ford vehicles and I so find. It was foreseeable that work by mechanics might involve blowing brake dust from brake drums and filing or grinding the edge of a brake shoe to ensure that it fitted, for example.

149 The question is whether it was reasonably foreseeable by the defendant that a mechanic might suffer an asbestos inhalation injury caused by the asbestos in the brake linings of vehicles manufactured or supplied by the defendant, or from brake parts supplied by the defendant.

150 The level of risk required in order that a risk be reasonably foreseeable is not high. It is enough that it is not far-fetched or fanciful and thus is real, even though it may be extremely unlikely to occur.

151 I propose to begin the review of the evidence relating to foreseeability issues with the expert evidence. In undertaking that review it should, it seems to me, be borne in mind that the question of foreseeability is not limited to the question of risk of asbestosis. It is broader than that and extends at least to reasonable foreseeability of any life threatening disease, including mesothelioma (see Bendix Mintex). At times, the defendant's submissions on foreseeability approached the question by reference only to the foreseeability of asbestosis.

152 I will deal first with the experts called by the plaintiff.

153 Dr James Leigh is a consultant occupational physician. He has extensive qualifications in medicine and mathematics. He is a fellow of the Australasian Faculty of Occupational Medicine and the Australasian Faculty of Public Health Medicine. In 1999 he was a consultant to the World Trade Organisation on asbestos issues. He was the head of the Epidemiology and Surveillance Unit of the National Occupational Health and Safety Commission from 1988 to 1996 and head of the Research Unit of that Commission from 1996 to 2001. He was co-ordinator of the Australian Mesothelioma Register from 1988 until 2001.

154 His first report (exhibit 24A) dealt at length with the development of knowledge about the risks of health arising from exposure to asbestos. Some of the points made in the report may be summarised as follows:

(a) by 1955 the issue of asbestos exposure as a cause of lung cancer was put beyond doubt in a published study by Doll;

(b) an article in Industrial Medicine by Cooke in 1942 pointed out the need for physically measuring dust concentration of asbestos, and not relying on sight only, because the then applicable 5 million particles per cubic foot risk level would not necessarily be visible to the naked eye; and

'Since we did not know the minimum effective dose of any of the many occupational carcinogens it seems obvious that they should be completely eliminated wherever that is practicable. This can be done by using or producing suitable non-carcinogenic substitutes.

Hueper went on to describe other control measures including enclosure, wetting and ventilation.

Dr Leigh also referred to a conference in England in 1969 at the Essex offices of Ford UK. The chairman of the conference was the chief medical officer of Ford UK. The conference was on the subject matter of exposure to asbestos during brake and clutch maintenance. The hazards and appropriate control measures were discussed. Control measures such as dilution and exhaust ventilation, vacuum funnels and brushes and respirators were described and their effectiveness demonstrated. The conference papers were published in 1970 in the journal the Annals of Occupational Hygiene, 1 - 41. That publication was document 30 within the bundle of documents comprising exhibit 37, which I will denote as exhibit 37/30. Further reference to these conference papers will be made later in these reasons.

155 At pp 7 - 12 of his report Dr Leigh referred to substantial scientific literature relating to short or low asbestos exposures and mesothelioma. The following summarises some of the points made:

(a) In the course of the 1960s various reports were made of occurrences of mesothelioma from asbestos exposure, in many of which no fibre type distinctions were made.

(b) In 1964 an editorial in the British Medical Journal drew attention to the occurrence of mesothelioma at low exposures and did not distinguish between the hazards of different fibre types.

(c) In 1965, in the British Journal of Industrial Medicine, Newhouse & Thompson (exhibit 37/216) described 83 mesothelioma cases, 40 of which gave a history of occupational or domestic exposure.

(d) In 1965 and 1971 two authoritative reviews of the epidemiology of asbestos cancers were published. Both recognised the possible differential effects of different fibre types but neither claimed that chrysotile did not cause mesothelioma.

(e) By 1970 the dangers of asbestos in causing mesothelioma were well known in Australia. All types were thought to cause mesothelioma with, from 1965, a common theory held by the majority that crocidolite was the most potent, followed by amosite and then chrysotile. However, there was a fairly strong minority that felt that all types should be regarded as equally potent in causing mesothelioma, based on animal inhalation and implantation studies showing roughly equal effects per unit dose. This is reflected in the International Agency for Research on Cancer (IARC) Evaluation (1976 p 80). (The IARC Evaluation is exhibit 37/141).

(f) A 1982 report by the Australian National Health and Medical Research Council (NHMRC) on the health hazards of asbestos commented on the impossibility of determining a safe threshold below which no adverse effect of asbestos exposure existed, and recommended as a result that exposure to all forms of asbestos be kept as low as reasonably practical. (The 1982 NHMRC report is exhibit 41/15 and will be referred to later in these reasons.)

157 Professor A W (William) Musk is an eminent respiratory physician and research scientist who has specialised in the area of asbestos related diseases for many decades. He gave evidence in relation to the diagnosis of the plaintiff, to which reference will be made later in these reasons. At that stage more will be said about his expertise.

158 At pp 8 - 36 of his substance of evidence (exhibit 18A) Professor Musk gave evidence relating to the development of knowledge in relation to asbestos related diseases and as to standards and regulations applying to asbestos exposure. By the mid-1960s Professor Musk said that it was widely accepted that asbestos could cause asbestosis, lung cancer and mesothelioma. It was accepted that small doses, particularly of crocidolite, could cause mesothelioma. The need for the protection of workers exposed to all forms of asbestos was known. Following a 1964 conference (held in New York) on the biological effects of asbestos, the overview of proceedings was said to be that 'it is abundantly clear from the evidence presented at the conference that in future much greater care must be taken to eliminate unnecessary exposure to asbestos dust wherever it occurs'.

LO PRESTI -v- FORD MOTOR COMPANY OF AUSTRALIA LTD [No 2] [2008] WASC 12 (19 February 2008)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (753 paragraphs)

LO PRESTI -v- FORD MOTOR COMPANY OF AUSTRALIA LTD [No 2] [2008] WASC 12 (19 February 2008)

What the defendant knew or ought to have known during the period 1970 to 1987

The matters relevant to the diagnosis question: the common ground and the issues

Is there a threshold level of exposure for contracting asbestosis?

Other matters said to be relevant to diagnosis

Observations on Associate Professor McKenzie's evidence

Observations as to the evidence of Professor Robinson and Professor Musk

Cases Cited (30)