LOWES -v- AMACA PTY LTD (formerly James Hardie & Co Pty Ltd) [2011] WASC 287 (26 October 2011)

4 The factual and legal issues to be decided in this matter are numerous and complex. No systematic attempt has been made to summarise those issues in the introduction to these reasons. Rather, the issues as they emerged from the pleadings, the evidence and the parties' submissions are identified in the relevant parts of the reasons.

5 It will, however, be helpful to commence by making some preliminary observations on the relationship between exposure to asbestos and asbestosrelated diseases. The matters referred to in this introductory section provide important context for identifying and determining many of the issues that arise in this action.

6 Professor Musk is an eminent specialist in respiratory medicine who has published extensively on asbestosrelated diseases. This section of the reasons is drawn from a statement of the substance of his evidence (exhibit 35) that formed part of his evidenceinchief. It refers to matters on which he was not crossexamined and which may be accepted as being uncontroversial.

7 The harmful effects of exposure to asbestos fibres may be divided into benign and malignant sequelae. The malignant sequelae of asbestos exposure are mesothelioma of the pleura, peritoneum, pericardium and the tunica vaginalis and lung cancer and other tumours, including tumours of the larynx and stomach. Benign sequelae of asbestos exposure include asbestosis, diffuse pleural thickening, pleural effusion and pleural plaques.

8 Mesothelioma refers to a malignant tumour arising from mesothelial cells. The outside of the lungs and the inside of the chest consist of a thin, moist layer of mesothelial cells. That tissue is known as the pleura so that a malignant tumour arising from the pleural mesothelium is known as a malignant pleural mesothelioma. Identical mesothelial cells line the abdominal cavity and cover the viscera in the abdomen known as the peritoneum. A malignant tumour arising from the peritoneal mesothelium is known as a malignant peritoneal mesothelioma.

9 A bronchogenic carcinoma (lung cancer) is a malignant tumour arising from the airways and airspaces of the lungs. Asbestosis also affects the walls of the airspaces and smallest conducting airways of the lungs. It causes inflammation that leads to scarring (fibrosis) of the walls of the small airways and airspaces. Diffuse pleural thickening is a condition where the pleural lining of the chest wall becomes generally thickened and inflamed. Benign asbestos pleural effusion is an accumulation of fluid in the pleural cavity resulting from asbestos exposure. Pleural plaques are localised areas of thickening on the inner pleural lining of the chest wall.

10 There was evidence suggesting that a mesothelioma may develop without any apparent exposure to asbestos; for example, Dr Gardiner, a chest physician, referred to cases of 'spontaneous' mesothelioma (ts 521 522). However, mesothelioma is a disease that is generally associated with exposure to asbestos. Dr Leigh, an occupational physician, stated that it was possible to attribute almost all cases of human mesothelioma to asbestos or erionite exposure (erionite is a nonasbestos fibre found in rock in certain areas of Turkey; see exhibit 34, 'BTS statement on malignant mesothelioma in the UK, 2007' published by the British Thoracic Society).

11 The mechanism by which asbestos fibres cause mesothelioma is not completely understood. The extent of the uncertainty surrounding the pathogenesis of mesothelioma and the implications of that uncertainty for the plaintiff's claim are issues that are subsequently considered in the context of causation. As will be seen, the uncertainty has significant consequences for the legal principles to be applied.

12 The matters referred to in this section are generally taken from the evidence of Professor Musk, Dr Leigh and Mr Pickford. I accept their evidence on those matters.

13 Mr Pickford is an occupational hygienist who was for many years involved in research undertaken by the National Health and Medical Research Council (NHMRC) into testing asbestos exposure. There was a challenge to Mr Pickford's expertise to express an opinion on certain matters. That challenge was rejected (see ts 624 638). However, what is discussed in this section of the reasons is not contentious.

14 Exposure to asbestos dust and fibres can be expressed in at least two ways. First, a measurement can be made of the number of asbestos dust particles or fibres in a given volume of air at the time of measurement. The measurement is generally expressed in terms of millions of particles per cubic foot (mppcf) or the number of fibres per cubic centimetre (f/cc) or fibres per millilitre of air (f/ml). The evidence disclosed that for some time regulations and guidelines suggested a maximum exposure level of 5 mppcf. That number of particles per cubic foot of air would be invisible to the human eye (Dr Gardiner, ts 526).

15 Second, exposure may be measured across time so as to derive an estimate of the cumulative exposure to which a person has been subjected. Cumulative exposure is quantified in terms of fibres per millilitre of air multiplied by years of exposure (expressed as 'x f/ml years'). That measure of cumulative exposure reflects two variables: the concentration of fibres in the air and the duration of exposure (Dr Leigh, ts 305 and see the report of Mr Pickford dated 14 January 2010 (exhibit 72)). So for example, exposure to one fibre per millilitre of air for 10 years results in a cumulative exposure of 10 f/ml years (as would exposure to 10 fibres per millilitre of air for one year).

16 There is a direct relationship between exposure to asbestos and the risk of contracting an asbestosrelated disease, including mesothelioma; that is, the greater the amount of exposure (referred to as the 'dose'), the greater the risk of harm. There was evidence (which I accept) suggesting a non-linear relationship between cumulative exposure to asbestos fibres and the rate of pleural to peritoneal mesotheliomas. The effect of that relationship is that pleural mesothelioma is more common than peritoneal mesothelioma at lower levels of exposure so that peritoneal mesothelioma is generally associated with higher exposures.

17 The experts who gave evidence in this matter defined dose adjectivally - generally, exposure was referred to as being 'high', 'low', 'intense' or 'intermittent' or variants of those terms. Similar terms were used in the epidemiological studies and other research papers that were tendered. No evidence was led as to whether there was an accepted standard by which the level of exposure was characterised; for example, whether so many fibres per millilitre was a 'high', 'low' or 'intense' exposure. The only indication of a systematic attempt to categorise dust concentrations by such descriptions that I was able to locate in the evidence was in a publication by the Committee on Hygiene Standards of the British Occupational Hygiene Society, 'Hygiene Standards for Chrysotile Asbestos Dust' (exhibit 191, tab 43). The classification in that publication was by reference to a timeweighted average concentration over three months. There was no evidence by which a classification made on that basis could be related to the designations used by the witnesses in this matter (or indeed, to the measurements of exposure that were referred to in the evidence). It should also be noted that another expert witness, Professor Berry, observed that what was regarded as 'relatively light [exposure] in 1965 will probably be considered quite high today' (ts 761). How perceptions of exposure levels have changed over time was not explained by the evidence other than inferentially by the accumulation of knowledge about the relationship between exposure and the risk of harm.

18 A second factor describing the relationship between asbestos exposure and the risk of harm is fibre type. There are three types of asbestos that were particularly relevant in this matter: crocidolite (blue asbestos); amosite (brown asbestos); and chrysotile (white asbestos). Crocidolite and amosite are amphibole minerals, while chrysotile is a serpentine mineral.

19 Each form of asbestos has different physical and chemical properties. For example, the fibres of crocidolite and amosite asbestos tend to be thinner, sharper and straighter than the fibres of chrysotile asbestos, which are generally curlier by comparison (Professor Musk, ts 359 360).

20 Epidemiological studies have demonstrated a variable relationship between asbestos fibre type and mesothelioma. Crocidolite is the most toxic, amosite is the next most potent and chrysotile is the least dangerous. The deposition in and clearance of fibres from the lungs varies between the fibre types (I infer, because of their different physical characteristics) and this may provide one explanation for the relationship (Professor Musk, ts 360 361).

21 While the relative potency of different fibre types was not in issue, there were aspects of the relationship between mesothelioma and exposure to chrysotile in particular that the defendant maintained were relevant to duty, breach and causation. The defendant submitted that the relationship between asbestos exposure and mesothelioma was identified in about 1960 and that 'at first, the research into mesothelioma was closely connected with crocidolite' so that 'whether other types of asbestos could cause mesothelioma was a matter of debate' (defendant's closing submissions, proposition seven). It was further submitted that, 'even today a question remains as to whether chrysotile causes pleural mesothelioma' (defendant's closing submissions, proposition eight).

22 Dr Leigh gave evidence that a further form of amphibole asbestos, tremolite, was a common contaminant of some chrysotile mineral deposits and that it had a 'mesothelioma potency' similar to crocidolite (exhibit 26, report dated 7 December 2009). He stated that some researchers considered that 'much of the mesothelioma potency of commercial chrysotile is due to the tremolite contaminant' but that this was, in his opinion, debatable. He also stated that it was 'very difficult if not impossible' to separate tremolite from chrysotile in the final commercial product. Professor Musk's evidence was that the 'chrysotile question' was not 'really clear because of the possibility of contamination of most chrysotile deposits' (ts 388).

23 There were also brief references in the evidence to other forms of asbestos mineralisation actinolite and anthophyllite. Those forms of mineralisation were said to be found in Western Australia. However, there was no evidence as to the relationship, if any, between exposure to actinolite and asbestosrelated disease and only passing references to a view held in the 1970s that mesothelioma was not caused by exposure to anthophyllite.

24 The third factor describing the relationship between asbestos exposure and the risk of contracting an asbestosrelated disease is the latency period; that is, the time elapsed from first exposure to the onset of symptoms. There was no issue that generally mesothelioma has a long latency period, most of the evidence suggesting at least ten years and usually much longer. The plaintiff contended that the period between his childhood visits to Castledare and the onset of his illness was around the median latency period for mesothelioma and that this was a significant factor in determining causation.

25 The length of the latency period for mesothelioma reflects the biological processes by which the cancer develops. It is postulated on the basis of epidemiological studies that the risk of contracting mesothelioma increases exponentially with time from exposure. Professor Musk stated (exhibit 35, page 6):

There are clear dose-response relationships for mesothelioma and lung cancer. Both malignant mesothelioma and lung cancer risks increase with time since first exposure, especially mesothelioma (to the power of 3.6) with years from first exposure (after first 10 years).

26 The notion that the rate of mesothelioma increases exponentially over time from the date of first exposure was not disputed. In addition to Professor Musk, Professor Robinson, a specialist in respiratory medicine, expressly referred to the exponential increase in risk over time (for example, at ts 534) and Dr Leigh accepted the concept (ts 321). Professor Berry, who is a biostatistician and epidemiologist, gave a detailed explanation of the mathematical model by which the relationship was described (sometimes called the 'Peto model' or the 'Peto relationship') (exhibit 80). The implication of the power relationship is that 'at any time it is the early periods of exposure that cause the greatest risk' (exhibit 80, par 2.4).

27 Finally, it should be noted that asbestos fibres do not readily degrade and they are 'biopersistant'; that is, they are not readily cleared from the body. Some researchers link biopersistence to the long latency period for mesothelioma (Dr Leigh, ts 319).

28 It was not in issue that there are respirable asbestos fibres in the atmosphere (at least in urban communities) as a result of the widespread use of asbestos during the last century. Professor Robinson observed in his report dated 8 April 2010 (exhibit 44), that the plaintiff would have experienced 'the standard exposure of similar individuals growing up in similar communities in Australia'. Findings are made later in the reasons about the circumstances in which the plaintiff was exposed to such atmospheric asbestos fibres (which I will refer to as ambient asbestos) that are consistent with that observation. The exposure to ambient asbestos is generally referred to as 'background' exposure.

29 Attempts have been made to quantify the risk of contracting mesothelioma from background exposure (the risk being referred to as 'background' risk). Those studies involved reviewing patient histories to ascertain whether there had been a 'specific' exposure to asbestos during a patient's lifetime. The cause of the patient's mesothelioma was attributed to background exposure where no specific exposure was reported. Obviously, accurate quantification depended on the reliability of the patients' histories. Given the long latency periods typical for mesothelioma, cases attributed to background exposure will inevitably include instances where a patient had forgotten or was unaware of a past episode of specific exposure and also, where an inadequate history had been elicited (Professor Musk, ts 364 365). This case provides such an example the plaintiff had no recollection of being taken to Castledare as a child and the possibility that he was exposed to asbestos during those visits was raised by his mother's evidence. Logically, an estimate of background risk may also include cases of 'spontaneous' mesothelioma if, indeed, exposure to asbestos is not implicated in every case.

30 Evidence concerning the level of background risk and how it compared to the risk, if any, of the plaintiff contracting mesothelioma as a result of his childhood visits to Castledare lies at the heart of the defendant's contention that the plaintiff has failed to prove that his mesothelioma was causally related to any exposure to the waste material it dumped at Castledare.

31 There can be some confusion in terminology when discussing background risk. Epidemiological studies often distinguished between occupational and nonoccupational exposures. Nonoccupational exposures may include the members of an asbestos worker's family and those who lived close to an asbestos mine or factory. Generally, asbestosrelated diseases in those persons are not attributed to 'background' exposure but to an identifiable (specific) source of exposure and concomitant risk. Some researchers refer to nonoccupational but identifiable exposures as 'environmental'; see, for example, the evidence of Dr Leigh at ts 299 and Dr Gardiner at ts 495. The terms 'background exposure' and 'background risk' are used throughout the reasons to refer only to exposure to ambient asbestos and the risk of contracting mesothelioma from that exposure.

32 Much of the knowledge about the relationship between exposure to asbestos and asbestos-related diseases has been acquired through epidemiological studies. Many epidemiological studies employ a measure, 'relative risk', to mathematically express an increase in the risk of harm from a particular source. Relative risk (RR) is a ratio derived from measurements or estimates of a person's exposure to, in this instance, asbestos fibres from a specific source. In The State of South Australia v Ellis [2008] WASCA 200; (2008) 37 WAR 1, Steytler P and McLure JA at [304] adopted what was said by Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2009) 49 NSWLR 262 [67] to describe the concept of relative risk:

Most epidemiological studies identify the strength of an association by a measure called relative risk (RR). RR is defined as the ratio of the incidence of disease in exposed individuals compared to the incidence in unexposed individuals. If the relative risk equals 1.0, the risk in exposed individuals is the same as the risk in unexposed individuals. If the relative risk is greater than 1.0 the risk in exposed individuals is greater than the risk in unexposed individuals.

33 It follows that an RR of 2.0 indicates a 50% probability that a patient's mesothelioma was caused by the specific exposure that was estimated (and see the discussion of relative risk in Hamer D, 'Mind the "Evidential Gap": Causation and Proof in Amaca Pty Ltd v Ellis' (2009) 31 Sydney LR 465).

Other preliminary matters Research and epidemiological publications

34 Both parties tendered a number of research publications said to be relevant to the reasonable foreseeability of harm from exposure to asbestos or to causation. Some of the publications were separately tendered as exhibits - for example, exhibits 120 123. However, a number of the publications were tendered as bundles collectively forming a single exhibit: exhibit 191 was a bundle of 56 government and research articles tendered by the plaintiff and exhibit 240 comprised a bundle of 66 publications tendered by the defendant.

35 The plaintiff's closing submissions referred to extracts from a number of the publications contained in exhibit 191 on the question of reasonable foreseeability. The publications were relied on to establish the state of medical and scientific knowledge about the risk of harm from exposure to asbestos dust and fibre at the time relevant to the questions of duty and breach. It was also submitted that the publications were or could have been accessed by the defendant and were relevant to establishing what the defendant knew or ought reasonably to have known about the relationship between exposure to asbestos and asbestosrelated diseases.

36 Exhibit 240 comprised publications that were said to have been referred to by the experts that the defendant called on the issue of causation. Senior counsel for the plaintiff indicated that he did not object to the tender of the articles 'as having been relied on but not as to their opinions' (ts 1133).

37 Evidence in the form of literature surveys was provided by Professor Musk, Dr Leigh and Mr Pickford. Those surveys were directed to the reasonable foreseeability of harm for the purpose of determining whether the defendant owed a duty of care and if so, whether it had breached that duty. They referred to a number (but not all) of the publications that were tendered, either separately or as part of exhibit 191. The surveys provided a brief summary of developments in medical and scientific knowledge about the relationship between asbestos exposure and disease, substantially by reference to what were apparently regarded by the experts as seminal research papers or epidemiological studies. Consequently, there was, to that extent, expert evidence that provided an explanation about the authority and effect of the publications that were referred to in the surveys.

38 There are obvious limitations on the use that can be made of a scientific publication without expert evidence directed to establishing the authority of the publication and explaining the methodology that has been employed, the meaning of the terms used and how the reported results are to be interpreted and applied to the issue to which the evidence is directed: and see Winmar v The State of Western Australia [2007] WASCA 244 [28] [29]. For example, Freckleton and Selby, Expert Evidence Law, Practice, Procedure and Advocacy (4th ed, 2009) identify four questions that must be considered in evaluating epidemiological evidence (at 1128 and following). A court has no real prospect of properly understanding and evaluating the evidentiary weight of an epidemiological study by reference to those and any other relevant questions concerning methodology and interpretation without the assistance of expert evidence on the study. In addition, there is the overriding question of the authority of the study: refer s 72 Evidence Act 1906 (WA). How is a court to form a view as to whether a publication is to be regarded as authoritative on a subject in the absence of expert evidence (at least where the authority of the work is not notorious)?

39 In the light of those considerations, I have almost entirely confined my review of the publications comprising exhibits 191 and 240 to those aspects that were expressly referred to or relied on by the parties' experts in expressing their opinions or which were cited by the parties in their closing submissions.

40 The plaintiff provided 46 pages of written submissions in opening. His written closing submissions comprised 461 pages, divided between 406 pages of 'primary' closing submissions and 55 closely typed pages in response to the defendant's written submissions in closing. The parties provided, in addition, written submissions on some issues concerning the admissibility of documents, on two applications by the plaintiff to reopen his case and on the effect of documents and statements that were tendered by consent following the completion of the trial.

41 It is not possible in these reasons to address each issue raised and every contention made in such lengthy submissions. The best that can be done is to identify in summary form the principal submissions made by the parties when introducing each major topic that is considered in the reasons. I shall refer to the plaintiff's primary submissions in closing as the 'plaintiff's closing submissions' and his responsive submissions in closing as the 'plaintiff's reply submissions'. The defendant provided one set of written submissions in closing.

42 The evidence suggested three ways in which the plaintiff might have been exposed to asbestos:

(a) The plaintiff's childhood visits to Castledare. The defendant accepted that the plaintiff had been taken by his parents to Castledare at a time when asbestos waste material was being dumped at that site or at a later time. However, it contended that it was unlikely that the plaintiff was exposed to asbestos dust and fibre during those visits having regard to where it says the waste material was dumped and the use that was made of the waste.

(b) Background exposure to respirable asbestos fibres while the plaintiff was growing up in Perth and possibly, in later life.

(c) Exposure while the plaintiff worked in the mining industry. The plaintiff was employed in the mining industry between 1989 and early 2009. He denied that he was exposed to asbestos during that time but the possibility that he may have worked at one or more mines where asbestos formed part of the local mineralisation was raised by the plaintiff's solicitors when instructing experts to provide an opinion on causation. There was only limited evidence as to the distribution of asbestos mineralisation in Western Australia and how that correlated with the mines at which the plaintiff had worked. That evidence is reviewed later in these reasons but it should be noted that those evidentiary difficulties led the defendant to submit in closing on the question of causation that, 'if it's a case at the border, then it [the possibility of mining exposure to asbestos] would be another factor that ... could [be taken] into account in saying that the plaintiff just can't provide that degree of persuasion necessary' (ts 1262). The plaintiff contended that the defendant had failed to establish that he had been exposed to asbestos at any time during his employment in the mining industry.

43 There was a suggestion in the plaintiff's written opening that background exposure and risk could be ignored in this case as a specific exposure had been identified in the plaintiff's history. That suggestion obviously misconceived what is meant by background exposure and risk: and see Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158; (2007) 34 WAR 109 [21] [24] (Martin CJ). However, the plaintiff's case at trial was not conducted on the basis that his only possible exposure to asbestos was during his childhood visits to Castledare. Rather, the examination of the expert witnesses and the plaintiff's closing submissions accepted that the plaintiff would have been exposed to ambient asbestos at times during his life.

44 The plaintiff's mother, Ms Lowes, gave uncontested evidence that 'on at least four occasions and probably more like six occasions' she and her husband took the plaintiff, with his sisters, to Castledare to ride on the miniature railway located in the grounds. She estimated that the visits occurred between about mid1972 and late 1973/early 1974 and that on each occasion they remained at Castledare for two to three hours: exhibit 4, par 3 and par 15.

45 Ms Lowes gave evidence as to why she recollected the trips. It is not necessary to recount that evidence as the defendant did not dispute her account of the visits (there was a suggestion in crossexamination that Ms Lowes' recollection of when the visits occurred may have been inaccurate but senior counsel for the defendant accepted that the suggestion had been based on a misunderstanding of records obtained from Landgate; otherwise, the defendant merely noted that it was difficult to place a date on the visits given the passage of time defendant's closing submissions, par 118). I accept Ms Lowes' evidence and make findings in terms of the matters referred to in the previous paragraph.

46 Ms Lowes also gave evidence as to what occurred during the visits at Castledare. She said (exhibit 4, pars 5 9):

[Simon] was a very energetic little boy, never wanting to sit still for more than a moment. He was always running about, playing in the garden, getting dirty. He was definitely a boy who liked to play outside and spend time outside. The trips to the railways were great because he could take a train ride which he loved and then play in the surrounds which was very interesting and fun for a boy of his age.

The railway was set on the river just beside the Castledare Boys Home. The railway snaked around in the trees which was great fun for Simon. We would have to wait in a queue for a while with Simon and Natalie before they could get on the train. Simon would run around in the area, playing with other kids, throwing things and so on before coming back to us just before it was time to get on the train.

It was also exciting for the kids because there was a river there and trees and piles of dirt and rubble which was spread around the place. Especially Simon, but also Natalie, would play in and around the area and get thoroughly covered in dust and dirt.

I remember that there was even white waste spread around in the area where we would wait to get on the train. This was the area where Simon was playing as we waited for the train ride.

I recall that the white waste - or whitish waste - was mostly very fine. There were clumps and bits and pieces in it, but there was a lot of very fine waste. Simon loved playing in it, climbing up and down the mounds and so on.

(a) Access to the miniature railway was gained by driving through the grounds of Castledare on a dirt road that was covered with 'some sort of white material' (exhibit 4, par 12).

(b) Parking was provided on a field beside the railway. The field was always dusty and located nearby were piles of 'white waste' that were dumped around the railway, including near the railway waiting area (exhibit 4, par 13). She estimated that the piles of waste were two to three feet high (ts 85).

(c) The children would 'disappear into an area that was full of the piles of white material'. There was a shop in the area where children would get on the train and which was beside the 'white road and piles of white waste' (exhibit 4, par 14). The children would get a white coloured dust on their clothes (ts 85).

48 Ms Lowes was not crossexamined on that evidence except to suggest that the white waste material to which she referred may have been sand rather than asbestos waste. It will be necessary to return to this aspect of Ms Lowes' evidence in making findings about where the waste material may have been located within the grounds of Castledare. Putting aside that matter, I accept Ms Lowes' evidence as to what occurred during the visits to Castledare. In particular, I find that the plaintiff played in the grounds of Castledare during the visits, including on piles of whitish material and that, as a result, he became 'thoroughly covered in dust and dirt'. I also accept her evidence that there were areas with piles of white material present during the family's visits, including near the railway waiting area and the shop.

The dumping of waste material by the defendant at Castledare - introduction The pleadings and the issues

49 The plaintiff alleged in the particulars to par 3 of the statement of claim that:

(a) the defendant dumped waste asbestos and waste asbestos cement in the grounds of Castledare from the early 1960s until about 1973;

(b) the waste was used for landfill in a swampy area, to cover roads in the area of the miniature railway and the tipping site and to build a base for the miniature railway line;

(c) the waste was dumped in heaps and then spread as fill, road cover or for use as a base for railway track.

50 Those allegations were not admitted by the defendant, except to say that it supplied asbestos cement waste to Castledare in 1971 and 1972 and that it understood that the waste was used by the Catholic Church for landfill in a swampy area. The defendant admitted in its written submissions in closing that it dumped asbestos cement waste at Castledare from early 1971 to, at the latest, February 1973 (par 63).

51 Nearly every aspect of the circumstances surrounding the dumping of waste material by the defendant at Castledare and the plaintiff's alleged exposure to asbestos dust during his childhood visits was contested notwithstanding the defendant's admissions. The issues and their significance were as follows:

(a) When was the waste material dumped? The primary significance of that issue was that there was evidence that the defendant used crocidolite in some of its manufacturing processes until the late 1960s. The plaintiff contended that it was likely that waste material containing crocidolite was dumped by the defendant at Castledare up to, at least, 1968. The defendant contended that it commenced dumping asbestos cement waste at Castledare in response to a request by an employee, Jeffrey Clifton (who was a member of the Castledare Miniature Railway Inc) made to the manager of its Welshpool factory after it had ceased using crocidolite at that factory. As previously noted, epidemiological studies have established that the risk of contracting mesothelioma is highest where there has been exposure to crocidolite. Further, the relationship between mesothelioma and exposure to crocidolite was recognised earlier than any possible connection with other types of asbestos. As the plaintiff's case developed at trial, the question of when the defendant commenced dumping asbestos waste at Castledare also had implications for the time at which duty and breach were to be assessed.

(b) What was dumped at Castledare? The question of what was dumped by the defendant at Castledare was not confined to the types of asbestos that might have comprised part of the waste material. The defendant maintained that the waste material consisted entirely of asbestos cement waste; the plaintiff suggested that the waste included raw asbestos fibre. The defendant submitted that it was less likely that asbestos fibres would be released into the atmosphere from asbestos cement waste as it contained asbestos bonded to cement and formed a concretelike material when combined with water. Asbestos waste and raw asbestos fibre, on the other hand, would be much more readily blown about by the wind and inhaled by anybody who resided at, or visited, Castledare.

(c) How was the waste material dumped? The plaintiff contended that the waste material was dumped in piles that formed mounds, the suggestion being that residents at the Boys Home and children visiting the grounds of Castledare could play on the mounds that were alleged to comprise asbestos dust and fibres and scraps from asbestos cement products. The mounds of waste were said to be an attraction for children and further, playing on the piles of asbestos dust constituted an episode of 'intense' exposure. The defendant, on the other hand, contended that the waste material was spread into and around the swamp area referred to in the pleadings after being dumped and that it solidified following contact with moisture in the area. There was also an issue as to whether the waste material ought to have been covered immediately on being dumped and if so, whether that had occurred.

(d) Where was the waste material dumped? The plaintiff contended that the waste material was to be found at a number of sites near and around the miniature railway and across the grounds of Castledare, the inference being that residents and visitors were readily exposed to asbestos dust and fibre. It was further said that the waste had been dumped in areas where children (residents and visitors) played. The defendant contended that the waste material was dumped away from the miniature railway and at a site that was not readily accessible to the public. It submitted that it was unlikely that the plaintiff had been exposed to asbestos dust and fibre during his visits to Castledare.

52 A further issue buried within those questions was whether waste material dumped by the defendant had been subsequently moved by, or under the supervision of the Christian Brothers at Castledare and if so, what implications that might have for the defendant's liability.

53 The evidence concerning the dumping of waste material at Castledare comprised:

(a) contemporaneous records maintained by the defendant;

(b) an affidavit made by Dr James McNulty sworn on 13 November 2009 (exhibit 242);

(c) evidence from Ms Lowes of what she observed on the occasions that she and her husband took the plaintiff to Castledare to ride on the miniature railway;

(d) evidence given by former residents or workers at, or visitors to, Castledare Christopher Wagland, Lance Tavani, Anthony Dalton, Norman Holmes and Gavin Waugh;

(e) evidence given by three former employees of the defendant Jim Polinelli, John Winters and Mr Clifton;

(f) a bundle of documents tendered by consent following the completion of the trial (document '689') and further statements provided by Mr Tavani and Mr Waugh that related to the matters referred to in the bundle.

54 Obviously, the witnesses who gave evidence were testifying about events that occurred between approximately 40 and 50 years ago (in the case of Mr Holmes). Memories are notoriously fallible and in the circumstances of this matter, I consider that there was a risk of unintended reconstruction (see, for instance, the comments of McLelland J in Watson v Foxman (1995) 49 NSWLR 315, 319). For example, childhood memories of seeing, playing in or moving piles of sand or other material at Castledare might readily and unintentionally be converted into specific recollections involving asbestos waste given the context in which the witnesses gave their evidence.

55 There were significant differences in the evidence about the dumping of waste material at Castledare. That was to be expected given the passage of time. For example, Mr Holmes indicated waste material was dumped at Castledare from at least 1963 (he indicated that the material had been dumped from before 1960 at one point in his crossexamination). Mr Clifton, on the other hand, gave evidence that the defendant commenced dumping asbestos waste at Castledare almost a decade later in early 1971.

56 Each source of evidence concerning the dumping of asbestos waste at Castledare is separately considered in what follows. In doing so, it will be necessary to outline each witness's evidence in some detail to disentangle the conflicting strands. However, it will be helpful to first give a brief description of the miniature railway that was constructed at Castledare. The layout of the railway and the history of its construction provided important context within which to consider the evidence on the circumstances surrounding the dumping of the waste material by the defendant.

The evidence on the dumping of waste at Castledare The Castledare miniature railway

57 Exhibit 1 comprised a booklet entitled, 'A Short History and Souvenir of the Railway', produced by the Castledare Miniature Railway Inc in 1977 (the Short History) and an enlargement of a map reproduced from the booklet (the map appeared at pages 12 13 of the booklet). The map is reproduced as annexure A to these reasons. It was shown to various witnesses in an attempt to identify where waste material was located within the grounds of Castledare. It should be noted that the map had no scale. I visited the site of the railway with the consent of the parties in order to better appreciate the distances involved (the miniature railway is still operating at the site).

58 The publication of the booklet was relatively contemporaneous with the events about which the witnesses gave evidence. Accordingly, it was a valuable source of information against which to assess their recollections.

(a) A track was first built in 1963 when 100 ft of track was laid. The railway was first operated publically at the Castledare Boys Home annual field day held in October 1963. The track was laid on timber sleepers 'which were placed upon sand spread out over the grass to fill the hollow spaces'. The booklet included a photograph taken in 1963 that depicted the original track under construction and being laid on what appears to be a sand base (photograph 1, page 4 and see photographs 1(a), 2, 3 and 5).

(b) Subsequently, an oval of track was constructed over 'Ferntree Bridge' along the bank of the Canning River to 'Penrhyn', swinging inland through 'Wormhill Tunnel' and back to 'Niana' (the railway station). The oval of track can be readily identified on the map annexed to these reasons; it encompasses the 'loco depot' and the members' car park. The Short History did not state when that oval of track was constructed. However, there were photographs in the booklet depicting the construction of this loop of track in 'about 1963/64' (photographs 5 and 6, pages 6 7). The booklet described the next extension of track as having been commenced in 1967 and the sense of the chronology is that the original oval of track had been completed by that time. Mr Clifton stated that the original oval of track had been constructed when he first became involved with the Castledare Miniature Railway Inc in about 1966 (ts 959).

(c) The further extensions were commenced 'northwards during 1967, a further tunnel being constructed, the lake cleaned out and the engineering feature of the Railway, a bridge over the lake'. The bridge was said to be 95 ft long. That description identifies the extension as being the loop of track that passes through 'Hume Tunnel' and over '95 Stanbridge'.

(d) Further extensions south were commenced at Penrhyn during 1970 and 1971. They were described as extending to 'Canning Junction', curving away from the station and returning to Niana (the station apparently being a reference to a station at Canning Junction so that the southern extension seemingly incorporated the track passing through 'Fisherman's Bend' and 'Honiton Cutting' and returning to Canning Junction).

(e) One of the features marked on the map was known as 'Dick's Dyke', which it was suggested in the Short History might have been a 'monument to an intrepid member and lay Brother of the Home'. I infer that this was a reference to Brother Dick, the booklet continuing 'in addition to all the works he did, he was mainly responsible for the excavation of the pond and the building of the banks in this area, for in those days much of the area where the railway is built was a sea of reeds and swampland. Indeed as one traverses the railway towards the southern section, the passenger can see the type of country the railway commenced on'. The sense of this passage, read in the context of the historical section of the booklet, is that the reference to the 'pond' was to the 'lake' over which 'Stanbridge 95' was built. I further infer that the reference in this passage to the southern section of the railway was to the loops of track commencing at Penrhyn.

(f) The track base was 'mainly earth or limestone with rock ballast directly underneath the timber sleepers'. No reference was made to asbestos waste having been used for the track base (or for any other purpose connected with the construction of the railway).

(g) One reason given for choosing Castledare as the site for the railway was that the boys residing at the Home could participate in its construction.

60 The Short History was compiled by RA Barltrop. There was no indication about whether Mr Barltrop was involved in the construction of the miniature railway from its commencement and whether the events that he described were recorded from his own knowledge or were, at least in part, an account based on hearsay. The Short History was admitted into evidence without objection. The fact that it might contain hearsay is only relevant to weight: Heydon J D, Cross on Evidence (8th ed, 2010) [1650]; Walker v Walker [1937] HCA 44; (1937) 57 CLR 630. In those circumstances, it is not necessary to consider whether the booklet is a 'book' dealing with matters of 'public history' for the purpose of s 72 of Evidence Act (refer to CasleySmith v FS Evans & Sons Pty Ltd [No 4] (1988) 49 SASR 339 and Ling v McDonald [1988] Tas R (NC) N17).

61 The Short History was written at a time that was relatively contemporaneous with the events that it described. It was infused with an enthusiast's fascination with detail and I accept that it reliably recorded the history of the construction of the miniature railway. The accuracy of what was recorded in the document was not challenged by either party and there was no submission directed to the weight that might be given to the statements that it contained. I make findings according to the matters stated in the Short History that have been summarised in this section of the reasons.

Minutes of the factory manager's conference June 1967

62 The plaintiff contended that the first reference in the defendant's discovered documents to the dumping of waste material at Castledare was in the minutes of a factory managers' conference held in June 1967 (exhibit 105). It is apparent from the minutes that the conference was a gathering of the managers of each factory then operated by the defendant in Australia. At page 24 of the minutes, under the heading 'Scrap Rivervale/Welshpool', it was stated that:

(a) At Rivervale, off-cuts from sheets and mouldings together with 'A.C. dust' (which I infer to be a reference to asbestos cement dust) were 'put over' the defendant's own dump each week. The material was dumped within a few yards of the despatch area of the factory.

(b) At Welshpool, 'all waste material including sludge leaves the factory by motor truck. It is disposed of either in a private dump or one belonging to the local Council'.

63 The plaintiff submitted that it should be inferred that the reference to a 'private dump' was to Castledare. Two reasons were given for why that inference should be drawn:

(a) the defendant had not led evidence as to the use of any other private dump 'during that period';

(b) Mr Clifton stated in crossexamination that he was not aware of any other private dump being used.

64 The first of those reasons reflected a general submission made by the plaintiff about the defendant's approach to the questions of what was dumped at Castledare and when the dumping occurred. The submission was contained in the following passage in the plaintiff's closing submissions (section 7.1):

James Hardie's own documents prior to the 1970s were almost completely silent as to where it was disposing of the very significant amounts of asbestos waste being generated at its factories. Mr Pickford had seen the documents for dumping in the 1950s and 1960s but they were seemingly destroyed and no explanation was provided (Allen v Tobias [1958] HCA 13; (1958) 98 CLR 367).

This silence was matched by the failure of the defendant to call anyone involved in the disposal of its factory waste to say what arrangements it made for disposing of waste during the 1960s and 1970s ...

The defendant did not produce a single truck driver or dispatch operator or housekeeping official or transport manager or manager or officer, to provide evidence as to when it started dumping waste at Castledare, despite knowing from the very start of this case that the plaintiff believed it started in the early 1960s ... The defendant kept employee records and used them when it chose to (ex 129). It could have called drivers and other relevant employees who disposed of waste in the 1960s. It chose not to (Jones v Dunkel and Blatch v Archer). It could have called Mr Lawless (or his predecessor) who seemed to have visited Castledare in June 1972 as to what was occurring on the site after Mr Winters' earlier complaint (T 571.2).

65 In my view, the matters relied on by the plaintiff do not permit an inference to be drawn that the reference to a private dump in the minutes of the factory managers' conference was to Castledare.

66 The first reason advanced by the plaintiff for drawing the inference assumed that the reference to a private dump in the minutes so obviously counted against the defendant that the inference should be made in the absence of evidence in rebuttal (it was said in section 7.2 of the plaintiff's closing submissions that the conclusion that the document referred to the dumping of asbestos waste at Castledare was, 'in the light of the evidence and the failure of the defendant to offer any contradictory position, the only conclusion reasonably open'). However, in my view the mere reference to a private dump in the minutes was too vague to permit such an approach to fact finding on this issue. That was especially as:

(a) The minutes were of a conference held more than 40 years ago.

(b) The minutes made only one reference to a private dump and there was no other record created prior to 1971 that the plaintiff suggested referred (directly or inferentially) to waste being dumped at Castledare by the defendant.

(c) In a lengthy written opening, the plaintiff twice referred to the minutes but made no mention of the passage now being considered (see at par 56 where the minutes were referred to for different purposes). Senior counsel made no reference to the minutes in his oral opening. The written opening repeated the pleaded allegation that the defendant had dumped asbestos waste at Castledare from the early 1960s and contended that, as a consequence, the waste included crocidolite fibres. The possibility that the waste included crocidolite was an important aspect of the way the plaintiff presented his case. In those circumstances, why should an inference adverse to the defendant be drawn from its failure to adduce evidence to clarify a reference in a document when that reference was not considered to be sufficiently important to warrant mentioning in a detailed opening?

(d) The observation implicit in that rhetorical question was reinforced by the fact that the defendant had an apparently reasonable basis for denying that it had dumped asbestos waste at Castledare prior to 1971: the witness statement of Mr Clifton (which subsequently formed part of his evidenceinchief). In this context, the question was not whether Mr Clifton's evidence should be accepted; the question was whether an inference should be drawn from the defendant's failure to lead evidence to explain a reference in a document that would be inconsistent with Mr Clifton's proposed evidence. It is difficult to see why the inference should be drawn when the defendant had apparently credible evidence suggesting that it was not required to provide any further clarification of an ambiguous reference in the document.

(e) Finally, in a section of the plaintiff's written submissions in opening headed, 'James Hardie's recorded knowledge of the Castledare asbestos dump' it was stated that 'the first references to Castledare in James Hardie's discovery appear in the minutes of the new James Hardie Environmental Committee which met for the first time on 22 January 1971' (par 71). That suggested that the submission that the reference to a private dump in the minutes of the factory manager's conference was to Castledare occurred to the plaintiff some time after the trial had commenced. Again, why should an adverse inference be drawn from the defendant's failure to adduce evidence on the reference in those circumstances?

67 The second reason given by the plaintiff for why it should be inferred that the reference to a private dump in the minutes of the June 1967 factory manager's conference was to Castledare was Mr Clifton's evidence that he was not aware of the defendant disposing of waste material on other private property (ts 963). The crossexamination at this point appeared to be directed to establishing that the defendant also dumped waste material on private property apart from Castledare but in any event, Mr Clifton's evidence was confined to his recollection of what occurred during the time he was employed by the defendant (June 1968 to 1982; and see at ts 931). Further, his crossexamination was intended to, and did, demonstrate that it was not part of his job to 'keep tabs on where the waste was going' (ts 964). Consequently, Mr Clifton's evidence did not support an inference that the defendant was disposing of waste material at Castledare prior to, and as at, June 1967.

68 There is a further reason for rejecting the submission that the reference in the minutes was to Castledare. As will become apparent, I have accepted Mr Clifton's evidence that the defendant commenced disposing of asbestos waste at Castledare some time after June 1968 as a result of a request that he made to the manager of the Welshpool factory.

69 The first contemporaneous record made by the defendant that expressly referred to the dumping of waste material at Castledare was not dated but was a report of a survey of industrial hygiene at the Welshpool and Rivervale factories undertaken in February 1971 (exhibit 66). The report was prepared by Mr Winters, who was described as an industrial hygiene engineer and who gave evidence at the trial.

70 The survey to which the report referred consisted of taking dust samples at various locations within the Welshpool and Rivervale factories to enable estimates of airborne asbestos fibre to be made. However, the report also included a section entitled, 'Test Recording Concentrations During Dumping of Dust'. Mr Winters conducted the tests that were referred to in this section of the report (exhibit 247, par 28). The section of the report was referred to on numerous occasions during the trial and accordingly, it is reproduced in full:

During the survey a test was also taken at the local orphanage, where asbestos dust is being used to fill swamp land and after covering with ashes a model railway is being built on this reclaimed ground.

Results of test were:-

1. During dumping (to windward) 280 f/cc
2. After dumping 0.37 f/cc

Although the after dumping figure is low, it could well rise if wind velocities increased.

If this method of dumping is to continue it is suggested that the load be dumped semidamp or if this is not possible dust should be watered down immediately when it is dumped.

However, I consider dumping of dust at the orphanage unwise. As our recent experience in NZ has shown, this could be an ideal target for a sensational news story, as the orphanage children visit this site each weekend.

71 The significance of the comments that appeared after the test results is further considered in relation to the questions of duty and breach. For the present, the reference to children visiting the site each weekend should be noted (although, the document gave no indication of the source of Mr Winters' knowledge and he was not asked any questions about how he learnt of the matter).

72 Mr Winters' report was distributed within the defendant, accompanied by a memorandum from Dr McCullagh. Dr McCullagh signed the memorandum in his capacity as 'Medical Officer (Federal)'. A number of the documents tendered by the plaintiff concerning the defendant's knowledge of the harm caused by exposure to asbestos dust and fibres referred to or were created by Dr McCullagh. Brief details of his background, so far as can be gleaned from the tendered documents, are provided in the section of the reasons on reasonable foreseeability.

73 Dr McCullagh's memorandum (exhibit 67) included the following passage:

I note Mr Winters' remarks on the dumping of waste dust. I doubt that watering the asbestos, as Mr Winters suggests, is likely to be very helpful - if the place is really a swamp it would seem superfluous, if it is, in fact, dry the effects of watering down are likely to be only temporary. Much more important, I believe, is that dumped asbestos dust be immediately covered with the ashes that are used for this purpose. I doubt very much that the orphans are in any danger from the asbestos, though if there is available an alternative site, not inhabited by orphans, its use would obviate the risk of adverse press comment.

74 It appears that the testing at Castledare by Mr Winters reflected a decision made by the defendant's 'environmental control committee'. The committee was established at a conference of the defendant's factory managers held in 1970 (exhibit 156). It was decided at the inaugural meeting of the committee held on 22 January 1971 that waste asbestos dusts were to be monitored, the minutes of the meeting recording that 'it was agreed that this should be done - but with caution. Dr McCullagh will instruct Mr Winters accordingly' (exhibit 160). The minutes did not explain why caution was necessary.

Minutes of the environment control committee March 1971

75 The minutes of a meeting of the committee held on 29 March 1971 recorded the following (exhibit 160):

DUST CONTROL - Asbestos Waste Tips. Samples collected from a tip used in Perth have since been counted. The tip is in marshland in the grounds of an orphanage about half a mile from the orphanage building. The intention is to fill with hard clean waste, cover and, apparently, then build a model railway. Weather conditions at the time of sampling were unremarkable.

Downwind of the tip truck, during tipping, the count was 280 fcm-3. Walking over the area after tipping was finished the count was 0.37 fcm-3.

Mr Winters questioned the wisdom of tipping in the grounds of an orphanage and urged that more attention be given to the prompt covering of tipped asbestos waste.

On the face of it, the site appears acceptable but prompt covering is important.

76 It is apparent from the minutes that the committee had before it either Mr Winters' report of February 1971 (exhibit 66) or some record derived from it.

77 The dumping of asbestos waste by the defendant at Castledare was again referred to in an 'interhouse' letter (a form of internal memorandum) dated 28 March 1972 from Dr McCullagh to various managers, including the chief executive officer (exhibit 68). The memorandum reported on a visit by Dr McCullagh to Western Australia. It included the following passage:

In Western Australia all asbestos bags are being dumped. As already noted some dust is collected and dumped in sealed plastic bags. Other dust is dumped on a swamp near an orphanage, wetted, covered with sawdust, wetted again and then covered with other waste.

78 The document did not disclose the source of Dr McCullagh's knowledge about what occurred at Castledare and there was no other evidence that assisted in identifying the source.

79 The final contemporaneous record made by the defendant that expressly referred to the dumping of asbestos waste at Castledare was a handwritten note made by Mr Winters, headed 'Waste Asbestos Tips' and dated 5 June 1972 (exhibit 70). The note recorded details about the disposal of waste from various factories operated by the defendant around Australia. It referred to the Rivervale and Welshpool factories and stated that waste was dumped at Castledare.

80 The information recorded in the note was provided by others to Mr Winters (ts 570 571 and ts 577; and see the minutes of the environmental control committee for the meeting held on 8 June 1972 forming part of exhibit 160 and which indicated that the survey results were distributed and noted). Mr Winters did not perform the dust and fibre tests recorded in the document for Castledare.

81 Arguably, there was some ambiguity in the way in which the information concerning the Rivervale and Welshpool factories was recorded in the handwritten note; it might be read as indicating that waste from both the Rivervale and Welshpool factories was dumped at Castledare (see the crossexamination of Mr Winters, ts 584). Mr Winters' ability to clarify the ambiguity was limited by the hearsay nature of his knowledge and the passage of time. However, he stated that the information recorded in the note did not refer to the disposal of waste from Rivervale despite the reference to that factory in the document. That was because the disposal of waste material generated at the Rivervale factory occurred at the factory (ts 582). There was other evidence which is referred to later in these reasons that corroborated Mr Winters' recollection in that regard and I have found that the Welshpool factory was the only source of the waste material deposited by the defendant at Castledare. Accordingly, I find that the note made by Mr Winters (exhibit 70) referred only to the disposal of waste from that factory.

82 The note recorded that the dust tested was 'pipe finishing dust' and that the fibre levels were 20.4 f/cc during dumping, 12.5 f/cc during spreading and 1.3 f/cc 10 minutes after dumping.

83 Two further aspects of the information recorded in the document should be noted:

(a) waste from asbestos pipes and flat sheets was dumped dry and then wetted but not covered;

(b) asbestos fibre was dumped in sealed bags or returned to part of the manufacturing process (and in a summary of the information recorded that appeared at the end of the document it was said that 'pure asbestos dust from asbestos treatment plants is returned to the mixing plant at all branches except Penrose and Welshpool pipe plant and these branches bag this dust in sealed plastic bags before being dumped').

84 Dr McNulty is a chest physician who was first employed by the Public Health Department in Western Australia in March 1957 as the medical superintendent of Kalgoorlie Hospital. He also held the position of the mines medical officer and in that capacity was responsible to the Minister of Mines under the Mines Regulation Act 1895 (WA) and the Mine Workers' Relief Act 1932 (WA). He held the position of medical superintendent and mines medical officer until 1963. Dr McNulty was subsequently a junior medical officer in the occupational and health unit of the Public Health Department between 1963 and 1972. He was made director of the unit and later, Deputy Commissioner of Public Health. Between 1975 and 1984, he was Commissioner of Public Health and between 1984 and 1987, the Executive Director of Public Health (see generally, exhibits 242 and 243).

85 Dr McNulty had no experience with the asbestos industry and asbestosrelated diseases prior to commencing employment with the Public Health Department. However, as medical superintendent of Kalgoorlie Hospital and mines medical officer, he became aware of the incidence of diseases such as asbestosis among workers at the Wittenoom asbestos mine. Further, he published an article in 1962 that reported on a case of pleural mesothelioma in a patient who had at one time worked at a blue asbestos mine in Western Australia (exhibit 191, tab 11). It was not in issue that the type of asbestos mined at Wittenoom was crocidolite (see exhibit 243).

86 Exhibit 242 was an affidavit sworn by Dr McNulty on 13 November 2009. The affidavit was made in connection with these proceedings. Regrettably, Dr McNulty now experiences health difficulties that prevented him from being able to give evidence at the trial (see exhibit 75). The plaintiff sought to tender Dr McNulty's affidavit, including the annexures, pursuant to s 79C of the Evidence Act. The defendant did not oppose the tender provided that it was permitted to tender:

(a) a proof of evidence of Dr McNulty that was prepared for and received as an exhibit in Misiani v Welshpool Engineering Pty Ltd [2003] WASC 263;

(b) a statement of evidence made by Dr McNulty that was prepared in connection with Nielsen v Seltsam Pty Ltd (a matter in the New South Wales Dust Diseases Tribunal (DDT) for which no judgment was published).

87 The plaintiff opposed the defendant's proposed tender of the proof and statement of evidence and indicated that he would seek to tender the transcript of Dr McNulty's oral evidence in Misiani if those documents were received.

88 Submissions on the proposed tender of Dr McNulty's affidavit and his other statements were received during and following the taking of evidence at the trial. I ruled that all of the documents should be received as exhibits and indicated that I would subsequently provide written reasons for those rulings; they appear at the end of these reasons.

89 Much of the affidavit sworn by Dr McNulty concerned a visit that he made to Castledare on 30 October 1972. He was accompanied by a Health Department inspector, Mr Moyle. The purpose of the visit was to investigate the disposal of asbestos waste by the defendant at Castledare (exhibit 242, par 20). Dr McNulty's professional experience was summarised earlier in the reasons because of the significance of his evidence about the visit.

90 Dr McNulty stated in his affidavit that he visited 'the James Hardie factory' on 25 October 1972. He made a file note of the visit, being attachment 3 to his affidavit (also separately, exhibit 220P). The file note did not identify the location of the factory but I infer that the visit was to the Welshpool factory. The reason for drawing that inference is that it was apparent from Dr McNulty's evidence that there was a connection between the visits to the 'James Hardie factory' and to Castledare.

91 Both Dr McNulty and Mr Moyle made file notes of their visit to Castledare (attachments 4 and 5 respectively to Dr McNulty's affidavit). Mr Moyle's file note stated that he and Dr McNulty were met by Brother Dick who 'showed us around'. The note then recorded that:

Loads of waste are dumped at the tip where landfill of low lying riverside land is taking place. It has also been used to build a track near the tip and to build a base for a miniature railway line. The railway is used at weekends by the boys and members of the public. Part of the asbestos waste is covered by a thin layer of loose sand while some is exposed to people on foot who would tend to scuff fibre to blow around in the wind. The area covered by sand could not be considered as satisfactory as it would be too easily moved by a combination of the elements and pedestrians.

92 Mr Moyle's file note concluded with an observation that the methods outlined in his note for disposing of the waste material did not comply with the Asbestosis Research Council's code of practice. According to Mr Moyle's note, the code required 'a minimum of nine inches of consolidated earth or other suitable material as a seal to prevent subsequent interference with asbestos waste'.

93 Dr McNulty's file note of the visit commenced with the observation that the defendant had been dumping asbestos fines at Castledare for some time. The source of that information was not disclosed in his note or in his affidavit. The note stated that the asbestos fines had been used for filling in a swamp and for the creation and maintenance of railway for a 'model train'. The dumping site at the swamp was approached by a short roadway of compacted cement asbestos tailings and there was a large pile of very fine dust containing asbestos. The compacted asbestos cement roadway was firm but very friable at the edges and there was obvious dust from vehicles running on the road. The note continued:

This site is out of bounds to the boys. However the model railway is very close to where the boys are and of course the model railway is open to the public on certain days throughout the year.

There is a pile of sand which is to be placed over the asbestos cement roadway. The fine dust and the compacted asbestos road surface at the dump is highly unsatisfactory and some alternative means must be arranged either to dump it or to cover it. The situation at the model railway is intolerable and some means must be found urgently to prevent the exposure of the boys at the home and visitors from the general public being exposed to dust in this way.

94 Attachment 7 to Dr McNulty's affidavit (separately, exhibit 162B) was a letter dated 14 November 1972 to the general manager of the defendant, marked as having been copied to Dr McCullagh. The letter commenced by referring to the visit to the factory and outlined several instances of poor dust control. It then continued:

Following this visit the disposal of waste asbestos was investigated. Part of this was taken to a tip and disposal is very satisfactory. The rest is transported to the Castledare Boys Home where loads of waste are dumped to fill in a swamp and to make the roadway for a model train. The dumping site at the swamp is approached by a short roadway of compacted asbestos cement. The edges were friable. There was obvious dust from vehicles and the main mass was a very fine dust containing fibre. This tipping site is out of bounds to the boys but is in an open area easily accessible to the public. The roadway also consists of fine compacted asbestos cement and since the model railway is open periodically to the general public it is obvious that many young children are exposed to asbestos fibre.

Some attempt has been made to cover the roadway but it is unsatisfactory and your company must urgently consider how this can be remedied.

95 Attachment 8 to Dr McNulty's affidavit (separately, exhibit 221) was a letter dated 16 November 1972 from Dr McNulty to Dr McCullagh. The letter concluded by stating that Dr McNulty was enclosing photographs showing the 'asbestos pollution' at Castledare. Attachment 6 to Dr McNulty's affidavit comprised six photographs that Dr McNulty stated were taken by him during his visit to Castledare (exhibit 242, pars 23 and 24). The photographs were shown to other witnesses for the purpose of identifying various sites around the grounds of Castledare and consequently, were separately received into evidence as exhibits 6, 7, 23, 24, 131 and 133.

96 Copies of the photographs were also sent to the general manager of the defendant under cover of a letter dated 16 November 1972 see attachment 9 to Dr McNulty's affidavit (separately, exhibit 222). The letter did not describe the photographs other than to state that '[t]he enclosed prints show that children have ready access to the asbestos waste dumped at Castledare Boys Home'. What is depicted in the photographs is described later in the reasons.

97 There was a query in the course of the hearing as to whether the photographs comprising attachment 6 to Dr McNulty's affidavit were the photographs that had been sent to Dr McCullagh under cover of Dr McNulty's letter of 16 November 1972: see ts 1087. The defendant made no submission in closing to the effect that the photographs were not those that had been sent to Dr McCullagh but to avoid doubt, I accept the evidence given by Dr McNulty at pars 23 and 24 of his affidavit and find that the photographs comprising attachment 6 (exhibits 6, 7, 23, 24, 131 and 133) were taken by him during his visit to Castledare and that they were the photographs that were subsequently sent to Dr McCullagh.

98 Dr McNulty returned to Castledare in 1981 (apparently for the first time after his visit in late 1972). He wrote to a Dr Heyworth, 'the permanent way [a reference to rail track] and, indeed, the whole environment has been tremendously improved' (exhibit 227). He could not find 'the tip site where the waste was dumped as land reclamation' and there was only one area where asbestos waste remained exposed. That area was, I infer from Dr McNulty's description, adjacent to the station at 'Canning Junction'. Dr McNulty recommended that remaining exposed waste be covered. There was no evidence as to how, when and by whom the 'tremendous' improvement to the site had been effected.

99 Ms Lowes' evidence concerning her family visits to Castledare has been summarised earlier in these reasons. Five matters should be noted from that summary.

100 First, Ms Lowes described the waste material as being white in colour. That accorded with the colour of the material depicted in the photographs taken by Dr McNulty. Second, she described the 'white waste' as being 'mostly very fine': 'there were clumps and bits and pieces in it, but there was a lot of very fine waste' (exhibit 4, par 9). Third, the waste was spread around but it was also in mounds and piles (exhibit 4, pars 8 9, 13). Again, that accorded with the photographs taken by Dr McNulty. Fourth, the field in which the Lowes' car was parked when visiting Castledare was said by Ms Lowes to be located beside the oval (ts 83). However, she was not asked whether the field was to the north or south of the oval and there was no evidence as to whether, for example, the field corresponded with the area marked 'public car park' on the map forming part of exhibit 1. Fifth, Ms Lowes stated that the plaintiff did not go anywhere near 'the tower' during the visits (ts 83). The white material in which he played was adjacent to the railway, including in front of the 'hut' depicted in the photograph taken by Dr McNulty which was exhibit 6. White material was 'around the railway line, all the way around the railway line, and bits other stuff in other places as well' (ts 85). There was a shop in the area where the children would get on the train (exhibit 4, par 13).

101 Mr Polinelli was employed by the defendant for approximately 33 years, commencing in 1966. He worked first in the Rivervale factory and then, in about 1970, he was transferred to the Welshpool factory (exhibit 8, pars 1 3).

102 Mr Polinelli principally gave evidence about the products that were manufactured at the Welshpool factory in the early 1970s and how waste was generated in the course of the production process. In summary, he stated that:

(a) The defendant manufactured asbestos cement building products and asbestos cement pipes at its Welshpool factory. The building products included flat asbestos sheets, 'Versilux', 'Villaboard' and 'Hardiplank' and associated products such as battens and mouldings (exhibit 8, par 4).

(b) The waste generated included scraps, broken pieces of asbestos cement and 'raw product' (exhibit 8, par 6). By 'raw product', Mr Polinelli meant the residue from the machine that was used to produce the flat sheets. The residue comprised 'asbestos fibre, cement, silica' (ts 96, 99). The various machines used in the production process were cleaned weekly, with the residue and waste being washed and scrapped from the machines and placed in a waste bin (exhibit 8, par 6).

(c) The finishing process generated much more dust and waste than the manufacturing process. For example, sheets of Villaboard and Versilux were sanded to provide a smooth finish. A very fine dust was generated by the sanding of the boards. That dust was collected and discarded as waste. Further, large amounts of fine dust were generated from the cutting of the boards. That dust was also collected and disposed of as waste (exhibit 8, pars 7 8).

(d) Approximately 2% of the fibro sheets would be damaged in the manufacturing process. The damaged sheets would be cut back to a different size to exclude the damaged part but the entire sheet would be rejected if that was not possible (ts 97).

(e) Cement and silica were the predominant components of the products manufactured at Welshpool. In addition, 'Hardiflex' contained cellulose pulp; it was probably the principal product manufactured and sold by the defendant in Perth in the early 1970s (ts 103). Mr Polinelli was, however, unable to say how much asbestos was included in the various products manufactured at the Welshpool factory.

103 Mr Polinelli also gave evidence about the disposal of the waste material from the Welshpool factory. He stated that in the early 1970s, the waste was taken by truck and dumped at a number of tips, including at Castledare, Centenary Park (a tip on the Canning River) and at the Canning Vale tip (exhibit 8, par 9). He was not directly involved in the disposal of the waste material but he estimated that he saw 'probably a couple [of trucks] a week' leave the factory carrying waste (ts 96). Waste was collected from within the factory and placed in bins. Each bin held approximately 3 4 cubic metres of material and two or three bins would be emptied into a truck to form a single load (ts 98).

104 Mr Polinelli also stated that waste material generated at the Rivervale factory was disposed of at the factory. The waste was dumped across an area that was approximately threequarters of an acre and covered with bitumen. The practice was in place when he commenced working at the Rivervale factory in about 1966. It was maintained throughout the time that he worked at the factory (ts 98).

105 Finally, Mr Polinelli's witness statement (exhibit 8) included the following statements:

1. The tipping at Castledare had started before I arrived at Welshpool, so I do not know what led to the use of the land around Castledare as a tip. It was widely known at James Hardie that the waste was being dumped on land around the miniature railway.
2. One of my colleagues at Welshpool was Geoff Clifton, who was a fitter by trade but later was a draftsman. Mr Clifton was heavily involved in the miniature railway which was then operating at Castledare.

106 That evidence was given without objection and was not explored in crossexamination. However, the statement made in par 10 was plainly hearsay and did not indicate when Mr Polinelli first learnt from whatever source that waste material from the Welshpool factory was being dumped at Castledare. There are, nevertheless, certain inferences that I have drawn from what Mr Polinelli stated in par 10 of exhibit 8 that are relevant to the findings that have been made about what was dumped at Castledare. Those inferences are discussed in the section of the reasons that deals with that topic.

107 It is not clear what, if anything, is to be made of the juxtaposition of the matters referred to in pars 10 and 11 of exhibit 8 in the light of the defendant's submissions concerning the significance of Mr Clifton's evidence that he initiated the disposal of the waste material at Castledare (Mr Polinelli was called as a witness by the plaintiff). I have drawn no inference from the way that part of Mr Polinelli's evidenceinchief has been presented given that there was no crossexamination on the statements made in par 11 of exhibit 8.

108 Mr Wagland was a resident at Castledare between 1967 and 1971. He was about 7 years old when he commenced residing at the Home (exhibit 21, par 3; ts 203).

109 Mr Wagland gave evidence that he recalled trucks dumping waste material at the grounds of Castledare. He was not told at the time that the waste material contained asbestos. However, he later realised that the material was asbestos waste as a result of knowledge acquired while working as a builder (exhibit 21, pars 5 and 12; ts 206).

110 Mr Wagland was unable to say precisely when waste material was dumped at Castledare: 'I really couldn't pinpoint the year that it was there, that they did that. I just distinctly remember the trucks coming in, a few of them, and dumping waste there' (ts 204). In crossexamination, he accepted that it was possible that the waste material was dumped in the last year of his residence at Castledare but 'my memory tells me it wasn't. It was much earlier than that' (ts 212).

111 Mr Wagland stated in his witness statement that the waste was usually dumped near the 'bottom oval' and that around 3 or 4 cubic metres of dust was dumped on each occasion. He recalled the dust being very fine, almost like a powder and bluegrey in colour (exhibit 21, pars 5 and 7; ts 208). The material was not white in colour when it had been dumped in mounds (ts 211). He did not recall there being any shards or pieces of fibro in the waste material (ts 210).

112 Exhibit 21A is a copy of the map of the miniature railway forming part of exhibit 1. The location of the bottom oval was marked on the exhibit by Mr Wagland. He placed the oval as being immediately to the west of 'Niana' and 'Wormhill Tunnel'. He identified the area where waste material was dumped (marked with the letter 'B' on exhibit 21A) as being at the northern end of the oval adjacent to what appears on the map (exhibit 21A) to be some form of crossing over the miniature railway line. The area was about 20 30 m from the railway station (ts 207). He also indicated that waste material was dumped adjacent to the tower that is depicted on the map immediately south of Wormhill Tunnel (the point where waste was said to have been dumped is marked 'C' on exhibit 21A).

113 Mr Wagland stated that after the waste was dumped, Brother Dick and Brother O'Connor 'would call us over from the oval and tell us to flatten out the mounds of dust' (exhibit 21, par 8). The waste was also spread on walking tracks around the main station of the miniature railway ('Niana') and on a roadway behind the handball courts (exhibit 21, pars 8 and 11). Mr Wagland identified the location of the handball courts on exhibit 21A as being immediately west of the 'coach tea rooms' (the courts are marked with the letter 'H' on exhibit 21A). He stated that there was a large open space behind the handball courts which was sandy. However, the oval and adjacent areas were covered with grass that was maintained and he did not recall there being mounds of sand (ts 211). He recalled that blue metal had been used to cover the sleepers on which the railway track had been laid (ts 211).

114 Mr Tavani attended school at Castledare in 1972 and 1973. He completed grades 4 and 5 at the school (exhibit 22, par 1).

(a) He recalled trucks dumping waste material that he identified in his witness statement as being asbestos waste. That identification was based on what he was told while a student at Castledare; in particular, Brother Dick told the boys not to throw the asbestos into 'the bonfire' because it would explode (ts 216).

(b) He also recalled that the texture of the waste material was 'whiteygrey dust but with fragments in it, some of it fibrous, some of it dusty, almost as if you had stuck your hand into a vacuum cleaner bag and pulled out a clump of stuff'. His recollection of the colour and texture of the waste material accorded with samples of asbestos that he had seen as an adult at the Asbestos Diseases Association and other places (ts 216).

(c) The waste material was dumped in piles. It took two forms: fine dust and fibre and broken pieces of board and scrap. The broken board was kept in a separate pile from the dust and fibre (ts 223). He had no recollection of seeing fine waste or fibre in plastic bags. There were 'big mounds' of the waste material at the south end of the football oval, quite close to the school. The area was close to 'the fort' (exhibit 22, par 8). He attached to his witness statement a copy of the photograph that was exhibit 133, stating that there were piles of asbestos waste in the area shown in the photograph. There was a swampy area which was out of bounds to the residents that was to the south of the location shown in the photograph. The railway passed through that swampy area. In my view, that evidence accorded with what was recorded in the file notes made by Dr McNulty and Mr Moyle and Dr McNulty's letter of 14 November 1972 to the defendant's general manager (exhibit 162B).

(d) He recognised the area shown in the photograph taken by Dr McNulty that was exhibit 6. The area was near where parents and children would wait to board the miniature railway (exhibit 22, par 6). Further, the tracks in the immediate vicinity of the railway were covered with asbestos waste (exhibit 22, par 17). There was another 'tip' to the north of a large grassy area which was, in turn, to the north of the oval (exhibit 17, par 15).

(e) He recalled playing with the asbestos waste and in particular, using it to form 'boondies' (asbestos that had been clumped into balls with wetting). He also recalled throwing pieces of broken asbestos sheet into a bonfire which was lit at the southern end of the oval. Brother Dick regularly told the boys that one of them would lose an eye playing with the asbestos in that way and Mr Tavani recalled 'more than one flogging from him' for ignoring that warning (exhibit 22, pars 11 and 12).

(f) Brother Dick would tow a water tank behind a tractor; this was used to water the track leading to the southern end of the oval (exhibit 22, par 12).

(g) The piles of asbestos dust and fibre varied in size from a foot high to a couple of feet, with some of the piles covered in grass (ts 218). The boys could 'just pull the grass aside and sink a boot in and grab handfuls of it'; 'once you got through the crust it was soft, dusty, fibrous, mainly very dusty, very light' (ts 218 and see also ts 221 222, 224). That evidence suggested that the piles may have been left undisturbed for some time.

(h) He had no recollection of steps being taken to cover the asbestos or to warn the boys that it was dangerous or that they should not play on the asbestos (exhibit 22, par 19). He denied that the material was sand or woodchip (ts 223).

116 Exhibit 22A was a further copy of the map of the miniature railway that formed part of exhibit 1. In his supplementary evidenceinchief, Mr Tavani marked on the map where the piles of asbestos were located. He did so by placing crosses on the map in an area immediately south of where he drew the oval (which he located as being to the west of Niana and Wormhill Tunnel). He also marked the location of the roads that he recalled being covered with asbestos. He drew a road that travelled along the southern and eastern boundaries of the oval and then headed north from Niana to the 'coach tea rooms' and beyond to the area marked 'public car park'. He also drew a road that travelled west from the coach tearooms area that is, away from the river and towards, I infer, the entrance to Castledare. Finally, Mr Tavani marked on the map the area where the broken board was stacked; again, this was to the south of the oval in the area where Mr Tavani indicated that the dust and fibre was heaped.

117 Mr Dalton worked at Castledare, commencing in about 1958. He ceased working there in about 1975 but he did not work continuously at Castledare between 1958 and 1975.

118 Mr Dalton stated in his witness statement that he recalled a truck dumping waste material on the grounds of Castledare. The waste material was not sand or sawdust but cement dust: '[w]e referred to the waste as cement dust'. He was told by Brother O'Connor to spread the cement dust over sandy tracks that were located within the grounds of Castledare. He used a tractor to perform that task. He was told to spray the cement dust with water and he observed that when it rained, the cement dust would harden and seal the tracks and keep the dust down (exhibit 30, pars 8 9).

119 There was no indication in Mr Dalton's witness statement of when, on his recollection, the cement dust was dumped at Castledare. There was also no indication of the amount of dust that was dumped or where it was placed. Leave was given over an objection to supplement Mr Dalton's witness statement by oral evidence. The court was informed in the course of argument on the grant of leave that Mr Dalton would say that the dumping of the cement dust occurred between 1967 and 1968 (ts 273) and that this could be corroborated by reference to a book detailing the history of the Christian Brothers that disclosed that Brother O'Connor was at Castledare between those dates (ts 275).

120 In supplementary evidenceinchief, Mr Dalton stated that (ts 280):

(a) the truck to which he referred in his witness statement had the words 'James Hardie' painted on a door;

(b) the material that was dumped was 'like a talcum powder with a bit of grey in it';

(c) the truck came four times across two weeks (twice in each week);

(d) two loads of waste material were placed next to an entrance to the grounds and the remaining two loads were dumped alongside the chapel and just behind the laundry, where 'it was all sandy there going down towards the oval';

(e) he could not identify approximately when the dumping occurred: 'Christ only knows. I wouldn't know offhand. I wouldn't know offhand, honestly'.

121 In crossexamination, Mr Dalton was directed to a paragraph in his witness statement which stated that, 'I had left Castledare somewhere in between 1958 and 1975 however I resumed my duties some years later although I cannot recall the date I left or the date when I returned' (exhibit 30, par 2). He was asked whether his return to Castledare was after 1975, to which he responded, 'I never kept the years, honestly. I just come and go when they got other jobs' (ts 281). Further attempts were made to clarify dates by reference to Mr Dalton's comings and goings at Castledare and his other employment. It was clear from his answers to those questions that, as he himself stated, he 'wouldn't have a clue of the dates at all' (ts 282 and see ts 283, 285 and 286). Further, he suggested in crossexamination that Brother Dick was at Castledare during the time that the cement dust was dumped. There then followed some confusion in Mr Dalton's evidence as to when this might have occurred, reference being made to when Brother Dick and Brother O'Connor were at the Home and whether both of them were at Castledare at the time the dumping occurred and if not, which one of them was present (see ts 283 288).

122 Finally, in crossexamination Mr Dalton stated that the cement dust was placed, 'where the cars were going in the field they were getting bogged, so my judgment to find where to put it. Then I did water straightaway' (ts 286). In reexamination, he stated that he was told to put the cement dust where the sand was and to mix it with the sand and put water on it (ts 288).

123 Exhibit 124 was an extract from a book entitled, 'The Scheme The Christian Brothers on Child Care in Western Australia'. The extract reproduced staff registers that stated that Brother O'Connor was a member of the staff at Castledare in 1968 and 1969. Brother Dick was not recorded as a member of staff in those years but was a member from 1960 to 1967 and again from 1970 to 1974. The staff registers also showed that Brother Dick was a member of the staff at Bindoon in 1968 (there was no entry for 1969).

124 The extract did not disclose how the registers were maintained. Consequently, it was not possible to tell whether Brothers were allocated to only one staff register for each year; it may have been possible for Brother Dick and Brother O'Connor to have been at Castledare together for a part of either 1968 or 1969.

125 The defendant did not object to the tender of the extract and neither party suggested that the details of staff movements were unreliably recorded. I accept the accuracy of the matters stated in the extract having regard to the source and make findings as to when Brother Dick and Brother O'Connor were members of the staff at Castledare according to what was recorded in the tendered extract.

126 In his written witness statement (exhibit 25), Mr Holmes stated that he was born in 1951 and that he was a resident at Castledare between 1957 and 1965 (par 1). He gave evidence in the statement that:

(a) He and other residents at the Home were required to work on the building of the miniature railway. There were two stages in the construction of the railway during his time at Castledare. He did not identify when those stages were undertaken, except to state that he believed the railway 'was being constructed' in about 1961 and 1962 (par 3).

(b) Typically, he was required to work on the construction of the railway in the afternoon ('before school had even finished') until around 5.00 pm (par 5). He and the other boys were also required to work all day each Saturday (par 6).

(c) Material was dumped in the grounds of Castledare by trucks which came frequently (at least during the first stage) (pars 7 8 and 25). The boys were used to shift the dumped material from piles to areas where it was spread with rakes and compacted by using shovels (pars 17 18). They also carted 'blue rock' that was used to form a base for the railway track and dumped material was placed on top of the blue rock (par 12). He and the other boys would be covered in dust from working on the railway; the water would turn grey when they subsequently showered.

(d) On one occasion, waste material was dumped next to the 'tennis courts' (par 21). Mr Holmes gave no other evidence in his witness statement about the location of the dumped material.

(e) He estimated that the first stage of the construction of the miniature railway took between 12 and 18 months to complete and the second stage took longer to finish (pars 23 and 34).

(f) The second stage involved constructing track that 'went down towards the river and into the swamp'. The only evidence given by Mr Holmes in his witness statement about the location of the first stage of the railway was that it started 'around the football oval in front of the tennis courts' (the reference to the tennis courts was clarified in oral evidence as being a reference to handball courts) (par 12).

(g) The second stage of construction involved Mr Holmes and other boys clearing scrub to form a track and removing greenery from the swamp. Mr Holmes did not describe the dimensions of the swamp other than to say that the boys were knee deep in mud and water when pulling out lilies that grew in the swamp. The swamp was then filled with blue rock and the dumped material was laid across the blue rock (pars 28 30).

(h) The dumped material was still everywhere after the railway was built and commenced to operate. It was on the edges of the railway track, on the roads down between the river and the creek and in front of the 'tennis courts'. Visitors to the railway would walk over the dumped material and children would play in it. Dust would be blown onto the oval and into the dormitories and classrooms so that the boys were always coughing (pars 37 41).

127 I have referred to 'dumped material' in this summary of Mr Holmes' witness statement. The dumped material was described as asbestos in the version of the statement that was served without any indication as to how Mr Holmes knew of the composition of the material. Leave was given to adduce further oral evidence on that matter but following the evidence, senior counsel for the plaintiff accepted that the references to asbestos in the witness statement ought to be deleted and replaced with the description 'dumped waste' (ts 238 239).

128 However, Mr Holmes was asked further questions in his supplementary oral evidenceinchief regarding the nature and colour of the dumped material and the court was invited in the plaintiff's closing submissions to infer that it comprised asbestos waste so that Mr Holmes' evidence 'should be seen as demonstrating that asbestos waste was being dumped on the site at least from the mid1960s' (page 88).

129 In the course of his supplementary oral evidenceinchief, Mr Holmes also stated that:

(a) Sometimes there were three or four trucks a day that came to Castledare to dump material (ts 238). He saw material being dumped near the handball courts. It was 'a grey material, fine, a lot of dust and there was also a separate pile with sort of a harder bluey rock'. Each pile would have contained 8 or 9 tonnes of material (ts 238). There were also big sheets, up to 10ft long. Some of the sheets were cracked and were probably about half an inch thick. They were stacked on top of each other. The planks were quite hard but they fractured easily when hit with an axe (ts 240).

(b) Mr Holmes subsequently stated that there were three piles of material, 'there was the fine stuff, the whitish stuff; then there was the darker stuff, bluey, with the fibres we could pull off; and there was also the sheets'. When asked to identify the material from which fibres could be removed, Mr Holmes stated 'that was the rocks, the harder rock'. The rock was described as having a light blue tinge (ts 241).

(c) Stages 1 and 2 of the construction of the railway were probably undertaken in the last two years of Mr Holmes' residence at Castledare (ts 242 and 245).

(d) Waste material was also dumped near the swamp which was at a site directly south of where material had been dumped adjacent to the handball courts. Further material was also dumped near the main entrance gate (ts 244). The dust was whiteygrey and very fine (ts 246).

(e) He recalled piles of dumped waste similar to those depicted in exhibit 131. The material was near the river, approximately 20 or 30 m to the north of 'Dick's Dyke' (ts 247 249).

130 Mr Holmes was crossexamined on his recollections of when material commenced to be dumped at Castledare. He stated that waste material was dumped prior to the construction of the miniature railway being commenced (ts 250; that statement was inconsistent with his evidence at par 7 of his witness statement). Although there was some confusion in his answers, he also stated that material was dumped two years prior to his last two years at Castledare (ts 250); that is, that it was being dumped from at least 1959 (as well as during his last two years at Castledare) (ts 251).

131 Crossexamination was then directed to when Mr Holmes was at Castledare. Contrary to what he stated in his evidenceinchief, Mr Holmes said that he was probably 7 or 8 years old when he left Castledare and that he must have been younger than 6 years of age when he arrived at the Home (ts 252). The following exchange is then recorded at ts 252 254:

Where did you go when you left Castledare?I went to Christian Brothers Agriculture School, Tardun.

How old were you when you went there?Probably about nine.

That would be 1960?I wasn't concerned with the years.

Well, you were born in 1951, were you?Yes.

So that would be in 1960?I didn't even know my real birth date so how would I know about the years?

You have always claimed to be born in 1951. Is that right?That's what my birth certificate says.

And you went to the new school when you were aged nine?I was taken off my mother when I was 14 days old, okay, and I was placed in the St Joseph's Orphanage. From there I went to Castledare and from there I went to Tardun.

When you were aged nine?About eight or nine. I don't remember the exact age.

That would mean that that happened in 1960?It happened in the sixties, yes.

Well, in 1960, not the 1960s?Not exactly. You weren't there so how would you know? I'm saying to you it happened prior to 1960 also.

Could this be the fact: that you actually left Castledare in 1960?I don't recall, mate. All I do recall is that I did work there on that railway. Putting dates and times is a bit hard for me because what I just remember is the physical abuse and the hard labour we did.

When you were at Castledare you were under the age of 10?Yes.

You left when you were eight or nine, you said?I believe so.

How old were you when you were working on the railway?Very young.

Were you five or six or seven?Six or seven.

So that's all consistent with this event that you are recalling having occurred before 1960?Well, I remember we built the railway and nothing is going to change that. No matter what you say it's not going to change it, mate.

I'm not trying to change it but?You're trying to lock me into dates so it makes me look like I'm not credible but I'm telling you we did this hard labour and you can search out the dates and the names and the years and whatever. I'm standing by what I believe happened, what I saw happen, what I did.

Do you think your memory might be a little bit troubled because you are emotional about the events which occurred?No.

Not at all?No, I'm not troubled by it. I mean, I do believe that organisations such as who you are representing today and the Christian Brothers shouldn't be allowed to hide behind a capsule of time and should be made fully accountable for their crimes against humanity.

132 It was suggested following that exchange that Mr Holmes' recollection of the events about which he had given evidence was 'very shaky'. Mr Holmes denied that suggestion and in doing so, referred to an incident involving the physical punishment of another boy that he obviously still finds to be a disturbing memory (ts 254). It was plain from that evidence and other parts of his evidence that Mr Holmes was most unhappy during his time at Castledare; that he was badly treated and that he remained angry and resentful about his treatment. That was accepted by the plaintiff in his closing submissions (plaintiff's written closing submissions, page 78).

133 Mr Waugh lived in a house located approximately 1 km from Castledare in the period 1955 to November 1967 and again, from mid 1969 until about 1974 (exhibit 49, pars 1 2). He gave evidence in his witness statement (exhibit 49) that:

(a) He got to know Mr Dalton while living close to Castledare and that he and others went there to visit him or play in the grounds. The trips commenced prior to 1967 and continued on his return to the district in mid 1969. He believed that he commenced visiting Castledare in 1965, when he was about 10 years old (pars 5 7).

(b) He remembered piles of dust around Castledare. The material was grey and was predominantly in three areas around the grounds of Castledare. The first area was along the riverbank where the railway tracks 'are now'. The waste was used as a base to extend the railway. The area was along the river to the southern end of the grounds of Castledare and the waste was dumped in piles in that area, 'part of which was a bit swampy because it was low lying along the river'. In his oral evidence, Mr Waugh identified the area as being in the vicinity of 'Squatter's Bridge' through to 'Canning Junction' on the map of the miniature railway forming part of exhibit 1 (ts 437). The dust was sitting in piles along the riverbank. There was a tower in the area and attached to Mr Waugh's witness statement was a photograph, being exhibit 133, that depicted the tower and some pipes (to the right hand side of the photograph) (pars 10 12).

(c) The second area where waste had been dumped was near a manmade pond. That was to the north and east of the main oval. According to Mr Waugh, the waste had been used extensively in the area when the railway track was extended around the lake (that is, the man made pond) (par 13). In his oral evidence, Mr Waugh identified the manmade pond as being in the middle of the area described on the map of the miniature railway as Stanbridge 95 (ts 436).

(d) The third area where waste was piled was 30 m 40 m from the main driveway in a paddock. The waste in that area was piled in 'significant mounds'. The area was probably 50 m 100 m away from the 'main' railway station (which I infer to be Niana) (par 14). A photograph of the area, being exhibit 131, was attached to Mr Waugh's affidavit. He recalled playing in the area, his recollection being that there were at least 50 piles or more of waste with each pile looking as though it had been dumped by a tip truck (par 16).

(e) The waste consisted of dust that was very soft and powdery. It had different shades of light and dark grey (par 15). The dust stuck to his arms and legs and those of his playmates and also to their clothing (par 21). The piles would harden if they got wet (par 23).

(f) There were damaged pipes that had been placed close to the southern extension of the railway near the tower. They were used for drainage at the northern and southern ends of the railway. They were covered with dust and other material (pars 25 28).

(g) There were no signs or barriers or other warnings about the waste (par 22).

(h) Between 1972 and 1975, Mr Waugh completed an apprenticeship as a shipwright. In about 1972 or 1973, he built a shed out of corrugated asbestos and as a result of 'those experiences and other observations and readings' he came to know what asbestos cement waste looked like and 'that was exactly what the Castledare dust looked like'. The waste that he observed at Castledare was definitely not sand or sawdust or blue metal (par 34).

134 Leave was given to supplement Mr Waugh's evidence so as to clarify when the events described in his witness statement occurred. He stated that there were some piles of waste material around the grounds of Castledare before he left the district in late 1967 but there was definitely more material when he returned in mid 1969. He also stated that he 'phased out' visiting Castledare when he commenced working in 1972. However, he did attend Castledare on occasions after that time to visit Mr Dalton and Brother O'Connor (ts 425).

135 Mr Waugh also stated in his supplementary evidenceinchief that:

(a) There was waste material along the riverbank that was used as a base to extend the railway for at least 12 months before he and his family went overseas in late 1967 (ts 426). That extension was the 'big southern loop which ran along the riverbank itself' and then came back in around the swamp (ts 426).

(b) There was a row of cement pipes that were used to drain the swamp. He recalled the pipes being there 'about midway through the extensions' (ts 426).

(c) The tower or fort that he referred to in his witness statement was built after the railway was finished or at least 'that part of it' (which I infer to be a reference to the southern extension), which he was 'pretty sure' was after he and his family came back from overseas (ts 427).

(d) The waste material that was dumped near the manmade pond was in the northern area and it was dumped after he and his family came back from overseas. Similarly, the waste material located in a paddock near the main driveway was dumped after he and his family returned from overseas and was the last area in which material was dumped to his knowledge. He stated that 'they got about halfway through filling that paddock and then it stopped'. The material would have been there for more than 12 months before he stopped going to Castledare. The material was not covered (ts 427).

(e) The material that was dumped near the manmade pond was not left uncovered for long as much of it was moved by a tractor or some form of frontend loader:

[t]hey would dump it in the area where the original track was because that was the main road down from the driveway on the northern side of the oval there, so it would either be dumped just before they got to the tracks or actually in the middle of the tracks and they would move it from there across (ts 428).

136 Mr Waugh stated in crossexamination that the dumping ceased in about the mid1970s (ts 428). The balance of Mr Waugh's crossexamination was directed to testing his memory by reference to what he was able to recall about the railway and the buildings and other structures that formed part of the miniature railway. Mr Waugh was unable to recall any detail concerning the buildings and structures, although he emphasised that they were not of interest to him when he was a child visiting Castledare.

137 As previously noted, Mr Clifton was employed at the defendant's Welshpool factory from June 1968 until June 1982. In about 1966 he became involved with the Castledare Miniature Railway Inc. In his witness statement (exhibit 130), Mr Clifton stated that:

(a) Within the grounds of Castledare there was an area of swampy land that he described as being 'something like a hole and was probably about 50 ft by 30 ft in size' (par 7).

(b) It was necessary to fill the swampy area to provide a flat and stable surface on which to build the model railway. The only area that required filling was the part on which the track was to be laid. He recalled that waste was brought to the swamp to be used as fill some time after he first became involved with the miniature railway association. That waste was sawdust. He was able to recall that it was sawdust as he remembered an incident when it caught alight and remained burning for some days (pars 7 8). That recollection accorded with evidence given by Mr Dalton that he remembered seeing sawdust at some point on the grounds of Castledare and that the sawdust caught fire on one occasion (exhibit 30, pars 5 and 10).

(c) He enquired whether waste generated by the defendant could be deposited at Castledare approximately two or more years after he commenced working for the defendant; he thought that it was probably in early 1971. He had become aware that waste was being taken to and dumped at tips and 'similar such places' and that the waste was desirable as fill as it was mainly composed of cement; once it was wet it would harden (pars 10 11).

(d) The request was made to the factory manager, Mr Waters. The waste comprised grindings taken from the edge of asbestos cement sheets or pipes. It was transported in the back of a truck a 6 or 7 tonne Bedford 'tipper' (pars 12 13).

(e) The trucks were driven to the grounds of Castledare and the waste was tipped into the area of the swamp. The surface was smoothed over with the aid of a tractor driven by Brother Dick. Moisture from the swamp would infiltrate the dust and the waste would harden after a while (par 14).

(f) The dumping continued for some time but had ceased by no later than 1973 (par 16).

(g) He had no recollection of seeing waste material being used to build roads or pathways on the land around the miniature railway. He also had no recollection of seeing any of the residents at Castledare assist in spreading the waste nor did he recall waste material being dumped at Castledare by the defendant during the 1960s. He thought that it was probable that waste from other sources had been taken to Castledare and used as fill during the 1960s (pars 18 19).

138 In supplementary oral evidenceinchief, Mr Clifton confirmed that he never saw a truck from the defendant come to the grounds of Castledare prior to the time that he made his request to Mr Waters (ts 930). He also stated that he worked in the engineering department at the Welshpool factory as a draftsman. In that capacity, he prepared drawings for dust collecting equipment that was subsequently installed in the factory. He saw waste being collected and loaded onto trucks and he had travelled with the trucks to rubbish tips operated by the City of Perth and the City of Canning (ts 931).

139 Mr Clifton also gave evidence of observing the defendant's trucks dumping waste material at Castledare. The material was dumped in the swamp to be used as fill and for 'some track formation just beyond it'. The truck was able to manoeuvre close to the swamp as there was hard ground to its edge (ts 935).

140 Exhibit 132 was a further copy of the map of the miniature railway that formed part of exhibit 1 marked up by Mr Clifton to show the location of the swamp to which he referred in his evidence and where he recalled asbestos cement waste being dumped. He placed the swamp at 'Squatter's Bridge'. Asbestos cement waste was dumped in the swamp and to the south of the swamp leading down to 'Canning Junction' and again around 'Fisherman's Bend' (ts 954). The swamp area was about 100 ft south of the oval of track depicted on the map of the miniature railway (ts 927).

(a) Soon after he became involved with the miniature railway there was a 'move to do track extensions down on the south end of the site'. He initially said that the decision to extend the track south was made in 1967 and that the northern extension had been completed by that time. However, he then stated that the decision could have been taken in 1969 and he agreed with the proposition put to him by senior counsel for the plaintiff that work on the northern extension only commenced in 1967 (ts 938 939).

(b) The asbestos cement waste that he organised for the defendant to deliver to Castledare was only for the purpose of constructing the southern extension (ts 939).

(c) Mr Clifton performed duties for approximately a year that were later undertaken by an industrial hygienist at the Welshpool factory. In that capacity, he was involved in taking dust tests at tips sometime after his connection with the miniature railway at Castledare ceased. That was in about 1975 (ts 943). He did not perform any dust tests at Castledare (ts 943).

(d) He thought that the dumping of asbestos waste at Castledare ceased two or three years prior to when his involvement with the miniature railway came to an end. The dumping ended when there was sufficient fill to 'progress' the track extensions (ts 944).

(e) To his knowledge, no waste material left the Rivervale factory (ts 950 951).

(f) He only very occasionally saw waste material actually being dumped at Castledare (ts 948 949, 951 952 and 972).

(g) He did not recall asbestos cement waste being used to construct paths around the grounds of Castledare or for any other purpose nor did he recall the waste being dumped at sites other than near the swampy area that he marked on exhibit 132 (ts 966 968).

(h) Water was not applied to the waste material after it was dumped. Rather, the material would harden only after moisture penetrated from the swamp (ts 952). He had no recollection of waste material being covered after it was dumped (ts 965).

(i) He recalled that sand was used as 'fill' near Niana to construct some embankments (ts 967).

142 Significantly, Mr Clifton's evidence that he initiated the dumping of asbestos waste by the defendant at Castledare was not challenged in crossexamination (indeed, a question put to him in crossexamination at ts 960 apparently accepted that he 'organised' the waste material to be delivered to Castledare; and see at ts 965). Two further aspects of the crossexamination of Mr Clifton should also be noted. First, his evidence that he joined the Castledare Miniature Railway Inc in 1967 was not challenged. Second, it was put to Mr Clifton that the northern extension was commenced in 1967. That proposition was consistent with the account contained in the Short History. He agreed that the track extensions to Penrhyn commenced in about 1970 or 1971 and that work on the southern extension took a long time (ts 955 and 963). The Short History was tendered by the plaintiff and the questions put to Mr Clifford apparently accepted the accuracy of the account it contained. That has some significance given the evidence of Mr Holmes and Mr Waugh about the timing of the northern extension and their recollection of the use of waste material for the purpose of that extension.

143 Mr Winters attended Castledare in early 1971 as part of his industrial hygiene survey of the Welshpool and Rivervale factories. The report that he made of the survey (exhibit 66) referred to February 1971 in its title and accordingly, I infer that the survey, including the visit to Castledare, occurred in or shortly prior to February 1971. The relevant part of Mr Winters' report has already been reproduced.

144 In his evidenceinchief (exhibit 247), Mr Winters said in relation to his visit to Castledare that:

(a) The land adjacent the Boys' Home was waste land. Part of it was a swamp, made up of either marshlands or tidal flats adjoining the Canning River. Asbestos cement waste was dumped into that area (par 20).

(b) The waste material was dumped in a swampy area. The idea was that the asbestos cement waste would fill the wetland and when the cement set, the land could be reclaimed from swamp and the miniature railway could be built on top (par 25).

(c) On the occasion that he visited Castledare, the waste was carried in the back of a tipper truck to the site and dumped. The tray of the truck was raised and the load slid off the back into the swamp. The area into which the waste material was dumped was damp and some of the waste slipped below its surface until the level of the waste rose to the point where it was exposed to the air (par 27).

145 In crossexamination, Mr Winters stated that his visit at Castledare lasted approximately 30 minutes during which time he observed the tipper truck dump its load of waste and he performed his tests (ts 576). He stated that he did not see fly ash at Castledare (ts 582) and most of the asbestos waste that he observed had not been covered (ts 589). He did not see the asbestos cement waste being wetted (ts 589). Mr Winters thought that the dust collectors at the Welshpool factory were emptied every two days 'or so', that the collected material was placed in a sealed container on the back of a truck and the waste material taken to Castledare. He also thought that approximately two trucks a week dumped waste material at Castledare (ts 583).

146 The plaintiff emphasised in his closing submissions the following evidence given by Mr Winters (ts 589):

You say that when you went to Castledare you saw that there had been many, many loads of asbestos dumped - asbestos waste dumped there previously?I did.

...

Well, do you have a recollection of the area of which you observed that had asbestos waste on the ground?From memory it was a tipping face that the waste material went into the marshlands and it was about six foot high, something like that.

147 That evidence had to be read in the context of an earlier exchange at ts 582 583:

And insofar as you saw dumping taking place at Castledare, it was obvious from what you saw that there had been dumping taking place before - on other occasions before you went there, is there not?That's right.

What did you see that suggested to you that before you went to Castledare there had been dumping of asbestos waste at Castledare?What did I see?

Yes?I saw a tip face with asbestos waste on it.

How deep and how high was that face?I can't remember.

Did you only go to the one area of Castledare when you did your testing?Yes.

148 Mr Winters also later stated that he was unaware of how long the defendant had been dumping asbestos waste at Castledare prior to his visit in February 1971 (ts 583).

149 Clearly, Mr Winters' evidence indicated that asbestos waste material had been dumped at Castledare prior to February 1971. However, the fact that he observed that 'many, many loads' had been dumped there previously provided little assistance in ascertaining when the dumping commenced other than that at two loads a week, it must have started some time well before February 1971. The same observation applied to his evidence concerning the tipping face.

150 Finally, it emerged in crossexamination that Mr Winters had provided consultancy services to the defendant since his retirement in 2001. He was on a monthly retainer to provide reports in preparation for legal cases but he was not retained to give evidence. He was paid approximately $35,000 per annum (ts 575).

151 Subsequent to the completion of the trial, a further bundle of correspondence concerning Dr McNulty's visit to Castledare in late 1972 was tendered by consent (the bundle was referred to by its discovery number, '689'). As has been mentioned, Dr McNulty wrote to the defendant's general manager following his visit (exhibit 222). That prompted a letter from the defendant's head office to the Western Australian branch manager (exhibit 162A) which is further considered in the section of the reasons on reasonable foreseeability and the defendant's knowledge of the risk of harm from exposure to asbestos. Document '689' included a reply to that letter (an interhouse letter from Mr Glanville to Mr Palfreyman dated 21 December 1972). It was stated in the reply that, 'we have been in contact with representatives of Castledare Boys' Home and the area in question is being covered'.

152 Further statements made by Mr Waugh and Mr Tavani were admitted also admitted into evidence by consent with document '689'. Mr Waugh stated that he continued to visit Castledare after late 1972 and during 1973. He could not recall that the tracks around the miniature railway line or the piles of waste that he remembered being in the grounds of Castledare were covered during that time. Mr Tavani was still attended school at Castledare in 1973. He did not recall any steps being taken to cover the asbestos waste or to prevent residents or pupils from playing in the waste. He and other boys continued to play in the waste and he did not 'recall any change at all to the availability or presence of the asbestos waste from one school year to the next'.

153 There was no application to re-open to enable Mr Waugh or Mr Tavani to be cross-examined on their further statements.

154 As previously noted, there were significant variations in the recollection of the witnesses about what they saw at Castledare. It would be surprising if the position were otherwise. In the circumstances, particular weight must be given to the (unfortunately limited) contemporaneous documents that referred to the dumping of asbestos cement waste by the defendant at Castledare. The documents provide the most reliable reference points for determining the relevant facts and assessing the witnesses' evidence. The attachments to Dr McNulty's affidavit and the Short History are especially important in that regard.

155 There are other issues concerning the reliability of the evidence that need to be considered before findings about the defendant's dumping of the asbestos cement waste at Castledare can be made. First, as previously noted, the plaintiff criticised the defendant's approach to the evidence at several points in his closing submissions. In summary, the criticisms were that:

(a) The defendant had in the past destroyed documents concerning the dumping of waste material in the 1950s and 1960s. Reference was made to Allen v Tobias [1958] HCA 13; (1958) 98 CLR 367 and the court was invited to draw an inference adverse to the defendant on when asbestos waste commenced to be dumped at Castledare from the alleged destruction of material documents (plaintiff's closing submissions, page 24).

(b) The defendant deliberately chose not to call former employees who could have provided evidence concerning the dumping of asbestos waste at Castledare during the 1960s and 1970s (plaintiff's closing submissions, pages 24 25).

(c) Mr Winters had been 'devious' in suggesting in his witness statement that he had severed his connection with the defendant when, in fact, he remained on its payroll:

[w]hile Mr Winters was not an expert witness and thus not under a duty to disclose, the court should in the circumstances look carefully at his evidence and reliability, not only because he was prepared to be devious (suggesting he had severed all links with the defendant by referring to his retirement) but because he remains on the payroll of the defendant and thus retains an economic interest with the defendant (plaintiff's closing submissions, page 78).

It was submitted that, as a consequence, the court should require corroborating evidence before it accepted statements made by Mr Winters that were adverse to the plaintiff's interests and favourable to the defendant. Further, the defendant 'must share the consequences of devious behaviour' as it was involved in the preparation of Mr Winters' witness statement (plaintiff's closing submissions, page 78).

156 There was, in addition, an attack on Mr Clifton's credit (especially in the plaintiff's reply submissions) which is considered later in this section of the reasons. It is also necessary to make some preliminary observations about the evidence given by Mr Holmes.

157 In Allen v Tobias there was a dispute over whether the defendant had executed a deed and copies of the deed. All copies of the deed had been destroyed by the defendant, the trial judge finding that this raised a suspicion that the copies had been destroyed to circumvent any difficulties that might have arisen in anticipated litigation from the deed having been executed. The High Court held that it should proceed on an assumption that the deed had been executed by the defendant for two reasons. First, he bore the onus of proof and second, a principle said to have been aptly expressed by Sir Arthur Channell in delivering the judgment of the Privy Council in The Ophelia [1916] 2 AC 206, should be applied (299 230):

If anyone by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him, and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case.

158 The principle identified in The Ophelia is sometimes referred to as the doctrine of spoliation. In Research in Motion Ltd v Samsung Electronics Australia Pty Ltd [2009] FCA 320; (2009) 255 ALR 508, Kenny J held that it was not enough to show that documents had been deliberately destroyed for the doctrine to apply. Rather, it had to be established that the documents had been deliberately destroyed with the intention of destroying evidence [34]. In McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73, Eames J said at [369], after citing from The Ophelia:

Wigmore identifies two distinct inferences which may be drawn from the destruction of a document. In the first place, the destruction of a document may be regarded as demonstrating a consciousness of the weakness of the party's cause, in general, and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit. The second inference which may arise is that the specific document is unfavourable to the cause of the party who has destroyed it. For the latter inference to be raised there must be some evidence of the contents of the destroyed document.

159 That passage was cited with apparent approval by Vickery J in Nicholson v Knaggs [2009] VSC 64 [197]. The passage indicates that an adverse inference about the merits of a party's case generally may be drawn from the destruction of documents; the doctrine is not confined to circumstances where a particular document was destroyed with the intention of suppressing evidence about a specific fact that was in issue in proceedings that were on foot or which was likely to be contested in proceedings that were anticipated.

160 The possibility that the defendant had destroyed documents was said to arise out of the evidence of Mr Pickford. At page 8 of his expert report (exhibit 72) he stated that:

I am one of the few people who was professionally involved in the field in the 1970s. I know that in the early 1970s (and I have seen records relating to the 1950s and 1960s) James Hardie (often on request) transported large quantities of asbestos cement waste to hundreds of buildings and development sites as valued fill (including school playgrounds). (emphasis added)

161 In crossexamination, Mr Pickford stated that the records to which he had referred in his report described the movement of waste material to privately owned land. He had sighted the documents while a member of the defendant's environmental control committee. They remained with the defendant (ts 638). The documents consisted of delivery records that had been gathered by a Mr Alan Overton, who had been interested in identifying dumping sites around the Parramatta area (ts 677). The school yard that he referred to in his report was located in that area (ts 677).

162 There was no direct evidence that the documents to which Mr Pickford referred had been destroyed. At most, an inference might be drawn from the fact that they were not produced at the trial (and therefore, had not been discovered by the defendant). However, the subject matter of the documents, as described by Mr Pickford, suggests that they may not have related to a matter in question even on the Peruvian Guano test (Compagnie Financiere du Pacifique v Peruvian Guano Co (1882) 11 QBD 55) and there was no indication that the plaintiff had sought production of the documents (Mr Pickford's report was provided approximately three months before the trial commenced). There was also no suggestion that other documents had been destroyed by the defendant.

163 The evidence summarised above comprised all of the evidence on the content of the documents. The evidence established no more than that during the 1950s and 1960s asbestos waste was supplied by the defendant as land fill at sites in the Parramatta area and perhaps, elsewhere (see at ts 677).

164 In my view, that evidence did not provide a foundation for an inference about the circumstances in which waste material was dumped by the defendant at Castledare or for drawing any general inference about the merits of the defendant's case of the kind referred to by Eames J in McCabe v British American Tobacco Australia Services. There was no evidence about the circumstances in which the documents had been lost or destroyed (if, indeed, they had been) and no basis for drawing any inference that they had been destroyed in anticipation of this matter or in an attempt to suppress evidence generally about the issues litigated in this case, including about the defendant's practices in disposing of waste. There was only scant evidence as to the content of the documents and none that directly connected the information recorded in the documents with the dumping of asbestos waste at Castledare.

165 The second basis upon which the court was invited to draw inferences adverse to the defendant about the dumping of waste material at Castledare was that it had failed to call as witnesses former employees who, it was said, could have provided relevant evidence.

166 In the The Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] [2008] WASC 239 (2008) 39 WAR 1, Owen J commenced a summary of the principles relevant to the application of the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 with the observation that, 'so far as I am concerned, the rule in Jones v Dunkel is grounded in commonsense. It falls to be applied in accordance with the circumstances of the case' [1001]. His Honour then summarised what he described as the 'basic jurisprudence' that had developed in relation to the rule. I gratefully adopt his Honour's summary of the relevant principles at [1003] [1022] and his observation that the rule is to be applied pragmatically.

167 In the plaintiff's closing submissions, Jones v Dunkel and Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; (1774) 98 ER 969 were cited in connection with a submission that the defendant had chosen not to call drivers and other relevant employees who had disposed of waste material from the defendant's factories in the 1960s. The submission did not further identify any particular inference that should be drawn or body of evidence that ought to be evaluated by reference to that imputed forensic decision. However, it is clear that the plaintiff was seeking to rely on the absence of such witnesses to reinforce the evidence that he contended established that asbestos waste had been dumped by the defendant at Castledare in the 1960s prior to when Mr Clifton stated that the dumping had commenced.

168 Four principles identified by Owen J in Bell concerning the application of the rule in Jones v Dunkel should be especially noted in that regard:

(a) The absence of a witness or a document cannot be used to make up any deficiency in the evidence. Consequently, it cannot be used to support an inference that is not otherwise sustained by the evidence and the rule cannot be used to fill gaps in the evidence or convert conjecture and suspicion into inference: [1004].

(b) The significance to be attributed to the fact that a witness did not give evidence ultimately depends on whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call the witness feared doing so: [1006].

(c) The rule only applies where a party is required to explain or contradict something. What a party is required to explain or contradict will depend on the issues arising from the pleadings and the course of evidence in the case: [1012].

(d) The appropriate inference to be drawn is a question of fact to be answered by reference to all of the circumstances of the case: [1019].

169 I do not consider that a Jones v Dunkel inference should be drawn in favour of the plaintiff on the question of whether the defendant dumped asbestos waste at Castledare during the 1960s prior to when Mr Clifton commenced his employment with the defendant for the following reasons.

170 First, the defendant adduced evidence on that question; it did not leave the issue unanswered in the relevant sense. On the defendant's case, the dumping commenced following Mr Clifton's request. There is a conflict between that evidence and the evidence relied on by the plaintiff. There is, however, no unexplained failure to call evidence on the question of whether dumping occurred in the 1960s. Further, there was no aspect of Mr Clifton's evidence that was so inherently implausible that an inference could be drawn that the defendant was endeavouring to hide behind his evidence and had made a forensic decision not to call other witnesses out of fear of what might be disclosed.

171 That point is reinforced by considering the evidence that the parties had foreshadowed would be called following the exchange of witness statements before the start of the trial. At that point, the only witness in respect of whom the plaintiff had provided a witness statement and who could give evidence in support of the allegation that the defendant dumped asbestos waste at Castledare from the early 1960s was Mr Holmes. (Mr Waugh first contacted the plaintiff in the course of trial and Mr Dalton's statement gave no indication of when the events he described had occurred.) I do not consider that any adverse inference can be drawn from the defendant's reliance on Mr Clifton's evidence having regard to the content of Mr Holmes' witness statement.

172 Second, there was the practical difficulty of identifying the former employees concerned. The plaintiff referred in that regard to the defendant's use of Mr Clifton's employment record, the unstated inference in the submission being that the defendant still retained employment records from the relevant period and that the records could be used for identifying truck drivers and others who might have been involved in the disposal of waste material from the defendant's Perth factories in the 1960s. However, Mr Clifton's employment record (exhibit 129) provided only an indication at one point in time of the position that he occupied while employed with the defendant. Consequently, the record did not support an inference that the former employees who might have been involved in the disposal of waste material could be readily identified. Moreover, it would still have been necessary to trace the former employees even if they could be identified as possible witnesses.

173 There was some evidence given by Mr Clifton about former employees of the defendant who had worked at the Welshpool factory during his time at the factory see at ts 945 947. However, I do not consider that the very general evidence elicited provided a substantive answer to the practical difficulties entailed in the proposition that the defendant ought to have called former employees from the 1960s and early 1970s as witnesses.

174 The final criticism made by the plaintiff about the defendant's approach to the evidence regarding the dumping of asbestos waste at Castledare concerned the nondisclosure of Mr Winters' retainer. Mr Winters was a witness of fact. His witness statement (exhibit 247) dealt primarily with his visit to Castledare in February 1971. It was not put to him in crossexamination that he had deliberately omitted referring to his retainer in his witness statement or that he had been devious in any way in giving his evidence. Such a serious allegation ought to have been put to him if it was intended to be made.

175 There was a further attack made on Mr Winters' credit in the plaintiff's closing submissions: 'it became clear during his oral evidence that Mr Winters' statement had been framed to best advantage the defendant and important matters had been left out' (page 80). The purpose of the submissions concerning Mr Winters' credit was elusive given that the plaintiff relied on his evidence to support his case in important respects. Further, there was no submission that any of his evidence should be rejected, with or without corroborating evidence, or that some identified part of his testimony should be carefully scrutinised.

176 It will be apparent from the summary of his evidence that Mr Winters volunteered matters in crossexamination that were favourable to the plaintiff and adverse to the defendant. Further, a number of matters identified by the plaintiff as not having been disclosed by Mr Winters in his witness statement were matters that he stated in crossexamination he had not seen during his visit to Castledare or about which he had no knowledge. I am satisfied that Mr Winters gave his evidence to the best of his recollection and that he endeavoured to assist the court in an impartial way.

177 Consequently, I consider that there was no foundation for the allegation that Mr Winters or the defendant had been devious in the preparation of Mr Winters' witness statement or that the statement had been framed so as to 'best advantage' the defendant in a way that adversely reflected on Mr Winters' credit. As I have already indicated, it was not put to Mr Winters that he deliberately concealed his ongoing relationship with the defendant and I conclude that he did not do so having regard to the subject matter of his witness statement and the manner in which he gave his evidence.

178 A further matter about which it is necessary to make some preliminary observations concerns the attack made on the credibility of Mr Clifton:

(a) It was said that there were significant differences between Mr Clifton's evidenceinchief and the evidence he gave under crossexamination: 'in crossexamination a remarkably different story emerged' (plaintiff's closing submissions, page 82). The criticism was largely directed to Mr Clifton's lack of recall on certain matters and the qualifications that he accepted in crossexamination on the extent of his personal knowledge.

(b) There was also criticism of the fact that Mr Clifton had not disclosed in his witness statement that he had been involved in industrial hygiene matters while an employee of the defendant and that he had conducted dust tests at tips in that capacity. It was said that Mr Clifton was vague and imprecise about when he had worked in industrial hygiene and that some explanation for his reluctance to reveal his role could be found in two documents that had been discovered by the defendant, exhibits 192 and 193.

179 In my view, there was no proper basis for those criticisms. As will be seen, I have not accepted all of Mr Clifton's evidence but that is not because I found it to be inherently unreliable. Nevertheless, it is necessary to fully consider the plaintiff's submissions given the weight that the defendant placed on Mr Clifton's evidence.

180 It was not said that relevant aspects of the defendant's industrial hygiene and dust sampling practices were disclosed for the first time subsequent to Mr Clifton indicating that he had at one time performed a role in industrial hygiene. Rather, the criticism was directed to Mr Clifton's credit as a witness, the gist of the submission being that he had tailored his evidence out of selfinterest and presumably, to advance the defendant's case (a proposition that was never put to him directly in crossexamination). I consider that the submission should be rejected.

181 The submission failed to acknowledge the difficulties experienced by a witness giving evidence of matters that had occurred approximately 40 years earlier and the way in which Mr Clifton sought to confine his evidence to his actual recollections. Further, the plaintiff's submission ignored a fundamental aspect of Mr Clifton's evidence which, in the circumstances of this case, reinforced the favourable impression that I formed of his candour and impartiality. The plaintiff's case is, of course, that he has contracted a terminal disease through an exposure to asbestos dust and fibres that, on Mr Clifton's evidence-in-chief, could be traced back ultimately to his request to the defendant's management. Indeed, Mr Clifton accepted without demur a proposition put in crossexamination that he was the 'linchpin' between the defendant and its disposal of asbestos cement waste at Castledare (ts 965). Suggestions that his evidence was contrived must be viewed in that context; that is, on a fundamental aspect of the plaintiff's case (and which had an obvious human dimension) Mr Clifton did not seek to minimise his involvement but rather, he acknowledged his role in an open and straight-forward way.

182 The primary purpose of the attack on Mr Clifton's credit was to challenge his evidence on when the defendant first commenced dumping waste material at Castledare and where the dumping occurred. However, as has already been noted, Mr Clifton was not crossexamined on his evidence that he instigated the dumping. Further, the plaintiff did not expressly submit in closing that Mr Clifton's evidence on this point should be rejected. The evidence was briefly referred to in a summary of Mr Clifton's testimony (plaintiff's closing submissions, page 82) and then ignored when the plaintiff identified the findings about the dumping of asbestos cement waste for which he contended (plaintiff's closing submissions, pages 87 88).

183 I consider that the crossexamination of Mr Clifton did not disclose that his evidence was inherently unreliable and partisan. It is relevant to observe that Mr Clifton ceased being an employee of the defendant many years ago. There was some evidence elicited in crossexamination about the circumstances in which he provided his witness statement (ts 938) but there was no suggestion that his statement was not the product of his independent recollection. I have also had regard to the matters submitted at pars 49 53 of the plaintiff's reply submissions in reaching that conclusion. Those submissions again refer to a lack of recall about certain matters and proceed on an erroneous assertion (according to the Short History) about when the southern extension of the miniature railway commenced.

184 The criticism that Mr Clifton was reluctant to disclose his role in industrial hygiene was based on statements contained in exhibit 192 and exhibit 193. Exhibit 192 was an interhouse letter dated 5 March 1975 from Dr McCullagh to the chief executive officer and other managers of the defendant. The letter expressed concern at the manner in which Mr Clifton had collected certain airborne asbestos samples. However, the tone of the interhouse letter was not especially censorious. Rather, it was to the effect that Mr Clifton should be advised or reminded to position himself at a particular point relative to a source of dust when taking samples so as to ensure the accuracy of the results.

185 Exhibit 193 was another interhouse letter dated 12 April 1972 from Dr McCullagh to the chief executive officer and other managers of the defendant. The letter referred to dust samples taken between September 1971 and March 1972 and stated:

Either one has faith in the continued occurrence of miracles or one has no faith in the worth of your sampling in the Tied Room and Blow Room at Rivervale ... Please asking him to stop faking the samples. Nobody believes the counts and the whole thing is just a waste of time.

186 The interhouse memorandum did not disclose the identity of the employee responsible for faking the samples. The tone of the letter was obviously censorious. The plaintiff's submission was that the memorandum referred to a period when Mr Clifton admitted to having taken dust samples and that the two interhouse letters provided some explanation for his 'reluctance' to reveal his role in industrial hygiene while working for the defendant (plaintiff's closing submissions, page 86).

187 Three points can be made about that submission. First, Mr Clifton volunteered that he had been involved in performing an industrial hygiene role. Mr Clifton's role emerged in the course of crossexamination about a Mr Lawless who was not called as a witness but who the plaintiff asserted had been employed by the defendant as an industrial hygienist from about 1972 until about 1988 (ts 941). The following exchange appeared at ts 942:

When you say you saw waste leave the factory, it wasn't your job to monitor what happened to that waste, was it, as a draftsman or as a fitter? No, but I also carried out the duties that Mr Lawless took over from me.

Sorry, that is industrial hygiene? Yes. That was part of my role.

188 That exchange is inconsistent with the plaintiff's submission that Mr Clifton had been reluctant to disclose his role in industrial hygiene, there being, in my view, no reason why he would have referred to that role in his witness statement (he gave unchallenged evidence that he did not perform any dust tests at Castledare).

189 Second, the evidence did not establish that Mr Clifton had been responsible for taking dust samples prior to April 1972 (the date of the interhouse letter). He stated that he took samples at tips after the defendant ceased dumping waste material at Castledare; that is, on Mr Clifton's evidence some time after about 1973 (ts 943 and see ts 945). The only questions put to Mr Clifton concerning exhibits 192 and 193 were as follows (ts 970):

Thank you. Just a moment. In April 1972 - I know that you have problems with dates - were you doing dust counting or did you still do dust counting then or had Mr Lawless taken over?I can't recall the dates when I started and finished in that role. It was only part of my role with the company.

Do you recall ever being accused of faking samples?No.

I see; and certainly you would remember if you had?Yes.

Apart from Mr Lawless, was anyone else involved in dust counts in April 1972? No. (emphasis added)

190 Consequently, there was no evidence that established that Mr Clifton had been involved in taking dust samples between September 1971 and March 1972, being the period referred to in the interhouse letter that was exhibit 193.

191 Third, no question was directed to Mr Clifton as to whether he was involved in taking dust counts at the Rivervale factory, which was the source of the faked samples. The only evidence that he may have taken dust samples at Rivervale was contained in exhibit 192. That referred to Mr Clifton and another employee measuring the airborne asbestos level in the 'operator breathing zone by a worker operating one of the lathes at Rivervale'. However, the interhouse letter that was exhibit 192 was dated 5 March 1975 and no inference can be drawn from its contents about whether Mr Clifton was involved in taking dust samples at the Rivervale factory over three years earlier (when exhibit 193 was written). There is no reason to doubt Mr Clifton's evidence that he had never been accused of faking samples. I should add that the plaintiff did not explain how its allegation that Mr Clifton was the person who faked the dust samples could relate to his evidence about the dumping of the waste material at Castledare in a way that undermined the reliability of that evidence.

192 It is also necessary in this section to make some observations about the evidence of Mr Holmes. As the summary provided earlier indicates, there were significant differences between his evidenceinchief and in crossexamination. I have no doubt that Mr Holmes' experiences at Castledare were traumatic. Clearly, they have left an emotional residue that was palpable when he gave his evidence.

193 The plaintiff submitted in closing (plaintiff's closing submissions, page 78) that:

Mr Holmes' evidence was important and was carefully given. His evidence, while in some respects weak on dates, was corroborated by other evidence and documents. His anger at his treatment at Castledare should not be seen as somehow diminishing his evidence and its utility.

194 The extent to which Mr Holmes' recollections were corroborated by other evidence is considered in a later section of these reasons. However, I cannot accept the plaintiff's submissions regarding the manner in which Mr Holmes gave his evidence. In my view, Mr Holmes' unfortunate childhood experiences at Castledare did colour his evidence. I do not consider that Mr Holmes sought to be untruthful or unhelpful but it was, in my view, apparent that his primary focus in giving evidence was on exposing how he and others were treated while at Castledare and that he was not concentrating on the detail of the matters about which he testified. That was, I think, demonstrated by the passage from his evidence that has been reproduced earlier in the reasons.

195 Broadly, there are four matters to be decided concerning what was deposited at Castledare by the defendant:

(a) whether the waste material comprised asbestos waste or asbestos cement waste;

(b) the composition of the waste material; that is, the type of asbestos mineral contained within the waste;

(c) whether the waste material contained 'raw' asbestos fibre;

(d) how much waste material was dumped at Castledare.

196 There is also a preliminary question that is relevant to each of those matters: whether any waste from the Rivervale factory was deposited at Castledare. There was no submission to that effect in the plaintiff's closing submissions but it was suggested in his submission in reply that the contents of exhibit 69 established that the Rivervale factory 'did external dumping during 1971' (par 82(b)).

197 The plaintiff contended in his closing submissions (page 88) that the following findings should be made about what material was dumped by the defendant at Castledare:

(a) the waste material comprised mostly 'fines' said to be fine waste created by the finishing process (cutting, grinding and sanding asbestos cement products) but that it also included scrap pipes and flat sheets;

(b) the waste material included pure asbestos dust that was not bagged before dumping;

(c) the waste material included chrysotile and amosite and until at least the end of 1968 (if not later), crocidolite (the possibility that the defendant continued to use crocidolite after 1968 was inconsistent with submissions made elsewhere in the plaintiff's closing submissions where it was accepted that the defendant ceased using that form of asbestos in 1968 see, for example, at page 141).

198 The defendant submitted that it should be found that the asbestos waste dumped at Castledare mainly comprised cement and silica; that asbestos was 15% of the waste material at most and probably much less; that the asbestos was mainly chrysotile, although there would have been a small amount of amosite and that no crocidolite was dumped at Castledare (the defendant's closing submissions, proposition 32).

199 Findings about the type of asbestos fibre incorporated into the waste material deposited at Castledare depend, in turn, on the findings made about when the dumping commenced. That question is considered in the next part of the reasons. This part deals with the remaining issues that have been identified about what was disposed of at Castledare.

Was asbestos waste from Rivervale dumped at Castledare?

200 I find that no waste generated at the Rivervale factory was dumped at Castledare. I make that finding for the following reasons:

(a) In what follows, I have accepted Mr Clifton's evidence that he initiated the disposal of waste material by the defendant at Castledare. His evidence was that the dumping of the waste was arranged with the manager of the Welshpool factory and that the material that was dumped originated from that factory.

(b) Mr Polinelli was employed at the Rivervale factory between 1966 and about 1970, at which time he transferred to the Welshpool factory. He was called as a witness by the plaintiff. He only referred in his evidence to waste from the Welshpool factory being dumped at Castledare. Further, he stated that while he was at the Rivervale factory, the waste from that factory was used at the factory (ts 98). It is possible that Mr Polinelli's evidence was confined to matters about which he could give evidence from his own observations so that the references in his statement to dumping waste material from the Welshpool factory merely reflected the fact that he did not work at the Rivervale factory during the 1970s. However, Mr Polinelli gave hearsay evidence about the dumping of waste material at Castledare prior to when he commenced working at Welshpool in par 10 of his witness statement (exhibit 8; par 10 of was reproduced earlier in the reasons). Several inferences can be drawn from what was stated in par 10. First, having been called by the plaintiff, Mr Polinelli was asked to give evidence on whatever he knew about the dumping of the waste material regardless of the source of his knowledge. Second, he 'knew' (in the hearsay sense that it was 'widely known at James Hardie') that waste was being dumped at Castledare prior to his transfer to the Welshpool factory. Third, what he 'knew' was that the waste dumped at Castledare came from the Welshpool factory. Fourth, irrespective of his source of knowledge, it is likely that he would have said that waste from the Rivervale factory was being dumped at Castledare if he had thought that had occurred.

(c) Mr Winters stated in his evidenceinchief that the waste material taken to Castledare came from the Welshpool factory and not Rivervale (exhibit 247, par 17). He repeated that evidence in crossexamination; at ts 582 he stated that he knew that Rivervale was dumping its waste at the rear of the factory and that this was the practice in 1971 and 1972. That evidence was not directly challenged in crossexamination, although Mr Winters was asked about why there was a reference to Rivervale in exhibit 70 (the document drawn by Mr Winters in June 1972 and which recorded details about 'asbestos waste tips'). He responded by stating that Rivervale had been listed in the document merely because it was a factory that produced asbestos waste (ts 584). There may be an element of speculation in that answer given the passage of time but, in any event, the reference to Rivervale in the document does not support an inference that waste generated at that factory was being dumped at Castledare having regard to Mr Winters' unequivocal evidence to the contrary.

(d) The minutes of the factory managers' conference held in June 1967 stated that waste from the Rivervale factory was 'put over' the defendant's dump each week, being disposed of within a few yards of the dispatch area of the factory (exhibit 105, page 24).

(e) Exhibit 69 (the document on which the plaintiff's submission rested) comprised a bundle of documents containing records for the sampling of asbestos dust dumped at various sites around Australia. The records were apparently prepared for the defendant's environmental control committee and were variously dated between February 1973 and March 1976. The bundle did not include any record for 1971. Further, the records did not distinguish between samples taken from waste dumped by the Welshpool and Rivervale factories.

Was the waste material asbestos waste or asbestos cement waste?

201 I further find that the waste material dumped at Castledare comprised asbestos cement waste and not, as the plaintiff pleaded, asbestos waste. I make that finding having regard to the evidence of Mr Polinelli and Mr Winters as to what was produced at the Welshpool factory. Their evidence was consistent on the point and neither was crossexamined on this aspect. The evidence was also confirmed by product mix specifications tendered by the plaintiff (exhibit 147).

202 Mr Polinelli stated that at the time of his transfer, the Welshpool factory made asbestos cement building products and asbestos cement pipes: 'a whole range of asbestos cement building products were made at Welshpool including flat asbestos cements, Versilux, Villaboard and Hardiplank'. Similarly, the pipe factory made a range of asbestos cement pipes and other products related to pipes (exhibit 8, pars 4 5). Mr Winters gave evidence to the same affect: 'the kind of products made at Welshpool were asbestos cement' (exhibit 247, par 17).

203 Mr Polinelli and Mr Winters also gave similar evidence about the constituents of the asbestos cement products: cement, asbestos, silica and at least in some instances, cellulose pulp (see Mr Polinelli's evidence at ts 96 and 103; Mr Winters' evidence at exhibit 247, par 17).

204 Exhibit 147 comprised a bundle of product mix specifications for the Rivervale and Welshpool factories variously dated between November 1960 and September 1975. The product mix specifications record that from September/October 1966, flat sheets and mouldings and UTS parts, couplings and conduits were made from a combination of silica, cement and asbestos. The only other product referred to in the mix specifications was corrugated sheets and mouldings. The mix specifications indicated that those products were also manufactured from asbestos and cement.

205 Reference to asbestos waste in these reasons are, accordingly, to waste material containing cement as well as asbestos.

When did the defendant cease using crocidolite at Welshpool?

206 Mr Winters gave evidence that the defendant ceased using crocidolite in its Welshpool factory in 1966 and at Rivervale in 1967 (exhibit 247, par 18). Crossexamination on that evidence was limited to one question. It was put to Mr Winters that he knew that blue asbestos was still being used at the Welshpool factory in 1968 (ts 580 - 581). He denied that suggestion. Parts of Mr Winters' evidence were challenged in the plaintiff's closing submissions but there was no adverse comment made about this aspect.

207 The source of Mr Winters' knowledge was not established but inevitably, it must have been a secondary source. However, as will become apparent, I have found that the decision to cease using crocidolite was taken on health grounds. It may be inferred that Mr Winters, as the defendant's industrial hygiene engineer, would have known of approximately when the decision to cease using crocidolite in defendant's factories was made.

208 The plaintiff submitted that 'the defendant's documents demonstrate that it kept using blue asbestos until at least 1968 (contrary to its current position)' (plaintiff's closing submissions, page 33). Reference was made to exhibits 94, 97, 105, 126, 138, 153 and 160. Several points should be made about those documents.

209 First, exhibits 94 and 97 concerned the supply of blue asbestos from CSR Ltd in late 1966. The context within which the documents were created is not entirely clear. Exhibit 94 was a letter from the defendant to CSR Building Materials Division dated 16 September 1966. It indicated that a quantity of blue asbestos was due to be delivered to 'Perth' in the last quarter of 1966. The letter did not distinguish between the Welshpool and Rivervale factories.

210 Exhibit 97 was a memorandum passing within the defendant from L RhysJones to BS Waters, headed 'Welshpool' and dated 22 November 1966 (L RhysJones was also the author of exhibit 94; s/he was described in that document as 'director' and I infer from Mr Clifton's evidence that Mr Waters was the factory manager for the Welshpool factory at the time of the memorandum). I draw the following inferences from exhibit 97:

(a) As at the end of 1966, it was anticipated that CSR would have 600 to 700 tonnes of blue asbestos in stock. The stock was described as being surplus stock after meeting the defendant's requirements for 1966. The actual amount of the surplus could, however, be 'up or down by a few hundred tonnes'.

(b) The defendant had agreed to acquire the CSR surplus stock and to use that stock in Western Australia.

(c) 600 to 700 tonnes of blue asbestos represented about 16 weeks' supply and a direction was given to use the existing mix specification for pipe products until the end of March 1967 and to continue with the existing mix specification for building materials until all stocks of blue asbestos were exhausted. The defendant would have time to build up its stocks of amosite during that period.

(d) The mix specification for pipe products included blue asbestos (see the reference to '200 lbs ABA3F'). The replacement mix specification for 1967 excluded blue asbestos.

(e) The existing product mix for building materials included blue asbestos ('700 lbs Blue') but the replacement mix specification excluded blue asbestos.

211 The second point to be made concerns exhibit 105. That exhibit was the minutes of the June 1967 factory managers' conference. Reference was made at page 25 of the minutes, under the heading 'Asbestos', to 'fibre purchases' in 1967 and 1968. The purchases included 'SA Blue'.

212 The fibre purchases recorded in the factory managers' minutes appeared to be a total for all of the factories then operated by the defendant. The minutes did not contain a breakdown of purchases for each factory. Further, flow diagrams depicting the different treatment circuits for each of the defendant's factories were reproduced at page 28 and following of the minutes. No evidence was given about the diagrams and they were not explained by counsel or referred to by the parties in their closing submissions. Nevertheless, it was clear from the diagrams, when read with the list of fibre purchases to which the plaintiff referred in his closing submissions, that the types of asbestos used as inputs varied between treatment circuits - that is, between factories. There was a reference to 'blue' in some of the diagrams, although not for the treatment circuits at either the Welshpool or Rivervale factories.

213 The meaning to be attributed to the flow diagrams was a matter of speculation given the absence of evidence that would enable the product inputs to be properly identified. Their only significance was that they reinforce the conclusion that no inference can be drawn from the reference in the minutes to purchases of 'blue' about whether crocidolite was used in the manufacture of asbestos cement products at the Welshpool factory in 1967 or 1968 at least, in the absence of other evidence that dealt specifically with the position at Welshpool.

214 Third, exhibit 126 comprised correspondence between Dr McNulty and Dr McCullagh in March 1968 in which a reference was made to Mr Waters stating that 'they had very little blue left'. The correspondence did not identify when that statement was made and what, if any, use had been made of the blue asbestos that remained. Dr McCullagh's letter of 18 March 1968, forming part of exhibit 126, suggested that Mr Waters had possibly referred to 'WA' and not just the Welshpool factory. I am not prepared to draw any inference about when the Welshpool factory ceased using crocidolite in its production processes from that correspondence.

215 Fourth, exhibits 138, 153 and 160 did not refer to the use of crocidolite at the Welshpool factory or the product mix specifications for that factory. However, part of exhibit 138 should be noted.

216 The exhibit was an internal memorandum from Mr Page to NE Gilbert dated 23 August 1968 (exhibit 138 indicated that Mr Gilbert was the defendant's manger, research and development). The memorandum indicated that the defendant was not interested in purchasing 'W.A. crocidolite'. The memorandum continued:

There is approx 200 tons of blue in stock at Brooklyn. It is proposed to dribble this through the pipe plant over the next few months to get rid of it.

This means that for the time being we cannot assert that we have dropped it altogether.

217 Finally, the product mix specifications for the Welshpool factory issued prior to 1967 (exhibit 147) referred to blue asbestos. The first product mix specification in the bundle for the Welshpool factory issued in 1967 was dated 14 April 1967 and made no reference to blue asbestos by that name or by any designation that the evidence established was a reference to crocidolite. Similarly, the product mix specifications for the Welshpool factory issued after that date apparently made no reference to blue asbestos. However, consistent with Mr Winters' evidence, the product mix specifications for Rivervale for 1967 still included blue asbestos ('ABA3S' or 'ABA3F/S').

(a) The defendant had decided to cease using crocidolite in all of its production processes by some time prior to August 1968 see exhibit 138.

(b) At some time during 1966 the defendant decided to cease using crocidolite at its Welshpool factory. I accept Mr Winters' evidence to that effect - it was consistent with exhibits 97 and 147.

(c) By about June 1967 the defendant had ceased using crocidolite as an input in any of the products manufactured in the Welshpool factory. That is later than the time given by Mr Winters but it reflects the 16 week period referred to in exhibit 97 and the production specifications contained in exhibit 147.

The product mix specifications in the late 1960's/early 1970s

219 Mr Winters gave further evidence regarding the composition of the asbestos cement products manufactured at the Welshpool factory. In his evidenceinchief, he stated that:

(a) The primary ingredient in asbestos cement was cement (exhibit 247, par 17) (a statement with which Mr Polinelli agreed ts 101).

(b) Asbestos comprised between 8% and 15% 'of the overall mix' (exhibit 247, par 17). Flat sheet products contained approximately 8% to 10% asbestos and pipe manufacture incorporated about 15% asbestos (ts 567).

(c) The type of asbestos used by the defendant varied over the years, but in the 1970s the defendant would have used 'nearly entirely chrysotile, with a small percentage of amosite'. Cellulose fibre was used from about 1968 (exhibit 247, par 18).

(d) Cellulose fibre was not a complete substitute for asbestos; it reduced the asbestos component by about 2% (ts 569).

(e) In the 1970s, chrysotile and amosite were used in pipe manufacture. Approximately 2% to 3% of the total pipe product comprised amosite. Some flat sheet incorporated about 2% amosite (of the total product). Hardiflex, which was a major product line, did not include any amosite (ts 569).

220 Mr Winters was crossexamined on parts of that evidence, including whether he recalled reviewing written product mix specifications for the Welshpool factory. He replied by stating that the product mix specifications were held by the factory manager and that he spoke to the factory managers. He was then asked, 'whether you actually can recall seeing the mix specification as opposed to talking to the factory manager?' Mr Winters replied that he did not know (ts 574). The crossexamination did not proceed further on this aspect; that is, it was not put to Mr Winters that his evidence as to the composition of the asbestos cement products manufactured at the Welshpool factory lacked any proper foundation or was unreliable for any other reason.

221 The type of asbestos used in the product mix specifications that comprised exhibit 147 was sometimes referred to by an abbreviation that was not explained in the evidence. However, several specifications referred to amosite by name or to 'amosite S33'. I infer that references in other specifications to 'S33' were also to amosite.

222 I find on the evidence given by Mr Winters and Mr Pollinelli and from the bundle of product mix specifications forming exhibit 147 that:

(a) From at least some time in 1966, the defendant used amosite in its production processes at the Welshpool factory. The product specifications comprising exhibit 147 first expressly referred to amosite in a specification issued in 1966 for the manufacture of pipes and associated products. The product specifications issued between 1966 and 1975 referred to amosite (including as 'S33') and I find that in the period 1966 to 1975, amosite was used as an input in products manufactured by the defendant at its Welshpool factory. That accords with Mr Winters' evidence.

(b) In the early 1970s chrysotile was used as an input in the manufacturing processes employed by the defendant. However, I am not able to make a finding about exactly when the defendant commenced using chrysotile at the Welshpool factory. The evidence of Mr Winters and Mr Polinelli concerned the position in the 1970s.

(c) However, the evidence of Mr Winters and Mr Polinelli and the product specifications forming exhibit 147 enable a finding to be made that the asbestos cement products manufactured at Welshpool included chrysotile from at least when crocidolite ceased to be used.

(d) The ratio of asbestos to nonasbestos inputs in the products manufactured by the defendant at its Welshpool factory from the late 1960s to the mid1970s was as stated by Mr Winters. Mr Winters' evidence was generally consistent with the product specification sheets comprising exhibit 147 insofar as I am able to draw inferences from those sheets.

(e) The percentage of amosite as a percentage of the asbestos component for the various products manufactured at the Welshpool factory ranged between approximately 16 per cent (pipe specification, October 1966) to about 33 per cent (flat sheets, October 1967 and July 1969). Overall, the percentage was around 20 per cent.

223 Those findings are generally consistent with the parties closing submissions (plaintiff's closing submissions, page 185 and the defendant's closing submissions, proposition 32). It was conceded by the defendant that some of the products that were manufactured at the Welshpool factory contained a 'small amount' of amosite about 2% or 3% of the total product.

Did the defendant dump raw asbestos fibre at Castledare?

224 I did not understand the plaintiff to suggest that the waste material dumped at Castledare did not include cement and silica. Rather, the submission was that 'raw' or 'pure' asbestos fibre was dumped, together with waste material generated from manufacturing and finishing asbestos cement products (plaintiff's closing submissions, page 88).

225 The plaintiff's submission was based on what was recorded in Mr Winters' handwritten note 'Waste asbestos tips' (exhibit 70). The noted stated in a column headed, 'Manner in which dumped' for the Welshpool factory: 'pipe and flat sheets dry. Asbestos fibre and plastic bags all returned to mixing plant'. The document also stated that 'pure asbestos dust from asbestos treatment plants is returned to the mixing plant at all branches except Penrose and Welshpool pipe plant and these branches bag this dust in sealed plastic bags before being dumped'.

226 Mr Winters accepted that the reference to 'asbestos fibre' was to raw asbestos fibre (ts 592 593). He also accepted that the document suggested that that material was being taken to Castledare in plastic bags. However, I do not consider that the plaintiff has established that raw asbestos fibre was dumped at Castledare despite that evidence.

227 Exhibit 70 was compiled from information provided to Mr Winters by others and not from his own knowledge. He stated that he saw no plastic bags at Castledare during his visit in February 1971 (ts 605). None of the witnesses who gave evidence about observing waste material deposited at Castledare referred to seeing waste contained in plastic bags. There was no evidence to suggest that raw asbestos was deposed of other than in plastic bags.

228 There was evidence that waste material from the Welshpool factory was disposed of at sites other than Castledare. Significantly, in his interhouse letter dated 28 March 1972 (exhibit 68), Dr McCullagh distinguished between the dumping of dust in sealed plastic bags at an unspecified site and the dumping of asbestos waste at Castledare (the relevant part of the interhouse letter was reproduced earlier in the reasons). Mr Polinelli referred to asbestos waste from Welshpool being dumped in the early 1970s at a number of tips, not just Castledare (exhibit 8, par 9). Mr Clifton also referred to asbestos waste from Welshpool being dumped at tips operated by the City of Perth and the City of Canning (ts 931 and see also at ts 964), although the time to which his evidence referred was not clarified. In his letter to the defendant's general manager following the visit to Castledare, Dr McNulty stated that part of the waste generated at the Welshpool factory was taken to a tip with the rest transported to Castledare (exhibit 162B).

229 Although the submission that the asbestos waste dumped at Castledare included raw asbestos fibre has been rejected, I accept that the waste material deposited at Castledare included fine dust. I also find that the asbestos waste included 'chips' or scraps of board. Those findings were not contested by the defendant (defendant's closing submissions, proposition 21). They are supported by the evidence of Mr Polinelli (exhibit 8, pars 7 and 8; ts 97 99), Mr Winters (exhibit 247, par 23) and Mr Clifton (exhibit 130, par 13). The findings are also consistent with what was recorded by Dr McNulty about his visit to Castledare (his file note dated 30 October 1972 (exhibit 242, attachment 5) referred to a 'large pile of very fine dust') and the evidence of Ms Lowes, Mr Wagland, Mr Tavani, Mr Waugh and Mr Dalton.

230 The evidence on whether the defendant also deposited asbestos cement pipes and flat sheets is slight. There are pipes shown in the photograph that is exhibit 133 (left hand side) and Mr Waugh recalled that pipes were used for drainage purposes. However, there was no further evidence about who delivered the pipes to Castledare or their composition.

231 Mr Winters' handwritten note concerning the disposal of asbestos waste at tips (exhibit 70) referred to flat sheets. Mr Tavani stated that there was broken board among the waste material he recalled seeing dumped at Castledare (exhibit 22, par 8). The minutes of the 1967 factory managers' conference (exhibit 105, page 24) suggested that very few offcuts and damaged flat sheets were dumped from the Welshpool factory.

232 I am not satisfied that the plaintiff has established that the asbestos waste dumped by the defendant at Castledare included pipes. However, not much turns on that matter. It is unlikely that the plaintiff would have been exposed to respirable asbestos fibres from asbestos pipes used for drainage. I accept Mr Tavani's evidence that the asbestos waste included some broken boards but again, I consider that not much turns on that finding. There was no evidence from Ms Lowes that during his visits to Castledare the plaintiff played with children who broke up flat sheets of asbestos (so as to possibly release asbestos fibres) and it is most unlikely that a small child could do so by himself.

Did the asbestos waste include or release respirable asbestos fibres?

233 At par 23 of his witness statement (exhibit 247), Mr Winters stated that the finishing processes employed by the defendant 'produced dust which was extracted and collected. Some of this dust was coarse, some was fine. The bulk of the dust would not have been fine enough to be respirable'.

234 Mr Winters was not crossexamined on that evidence. It was relied on by the defendant as only respirable fibres are potentially harmful (defendant's closing submissions, par 69). There are several matters that are relevant to any inference that might be drawn from the evidence:

(a) Mr Winters distinguished between coarse and fine dust. It has been found that the asbestos waste dumped at Castledare contained fine dust; indeed, the overall effect of the evidence was that it contained a substantial amount of fine dust.

(b) As will be seen, Mr Winters was concerned about the risk posed by depositing asbestos waste at Castledare. There was no suggestion in his evidence or in the contemporaneous concerns expressed by Dr McNulty that the risk about which they were concerned was allayed by the composition of the waste. Indeed, Dr McNulty's letter to the general manager of the defendant following his visit to Castledare expressly referred to 'very fine dust containing fibre' (exhibit 162B).

(c) The proposition that much of the asbestos waste dumped at Castledare was too coarse to contain respirable asbestos fibres was not put to any other witness despite the obvious significance of Mr Winters' evidence and the fact that it was given in a witness statement prepared prior to the trial. It might have been expected that the proposition would have been put to Mr Polinelli and the expert witnesses called by the plaintiff and would have been the subject of instructions to the experts retained by the defendant (including Mr Pickford who was familiar with the production processes employed in the asbestos industry at the relevant time). That was especially as Mr Polinelli gave evidence that the waste generated at the Welshpool factory included large amounts of fine dust.

(d) Mr Winters gave no evidence that would provide context for his statement; that is, what he regarded as being a respirable asbestos fibre and why such fibres would not be released from coarse waste material that was disturbed. The evidence generally was that respirable asbestos fibres were so fine that they could not be detected by ordinary sight. Further, it is to be readily inferred that coarse waste would have been further broken up through being transported, dumped, carted and spread. It is also to be inferred that respirable asbestos fibres would have been released as a consequence of children playing with both fine and coarse dust.

(e) Mr Pickford was provided with the survey of dust counts for asbestos waste tips compiled by Mr Winters in June 1972 (exhibit 70). He stated in his expert report, 'no doubt the disposal of AC waste such as documented in the Hardie Waste Asbestos Tests in 1972, showed the presence of AC dust at Castledare, which would have contained significant quantities of asbestos fibres, as demonstrated by the elevated airborne asbestos concentrations'. Mr Pickford was called by the defendant to give evidence about, among other things, his estimates of the plaintiff's exposure to respirable fibres while visiting Castledare. He used the dust counts recorded in exhibit 70 for that purpose and accordingly, I read the passage from his evidence reproduced above as referring to respirable asbestos fibres.

235 I find that the asbestos cement waste deposited by the defendant at Castledare contained and released respirable asbestos fibres for those reasons.

When was waste material dumped by the defendant at Castledare?

236 As has already been noted, the plaintiff alleged in his statement of claim that the defendant dumped asbestos waste at Castledare from the early 1960s to about 1973. He contended in his closing submissions that the evidence disclosed that the defendant had commenced dumping the waste material by, at least, 1965 and probably earlier. The defendant maintained in closing that the evidence was consistent with its pleaded admissions.

237 The plaintiff relied on the following matters in support of his allegation (plaintiff's closing submissions, pages 87 88):

(a) the reference to a 'private dump' in the minutes of the factory manager's conference held in June 1967;

(b) the evidence given by Mr Winters that when he visited Castledare in February 1971 he observed a pile of waste with a 'six foot tipping face' and that it was clear to him that there had been 'lots of dumping' prior to his visit;

(c) the evidence of Mr Wagland, Mr Dalton, Mr Holmes and Mr Waugh, which it was said was to the effect that waste material had been dumped at Castledare from the mid to late 1960s;

(d) the fact that the defendant was the only manufacturer of asbestos products in Western Australia during the relevant period.

238 In its closing submissions (pars 62 66), the defendant:

(a) relied on Mr Clifton's evidence to contend that it commenced dumping asbestos waste pursuant to Mr Clifton's request to Mr Waters;

(b) accepted that there was evidence of the presence of some kind of waste at Castledare before 1971 but submitted that there was no evidence that the defendant was the source of that waste;

(c) suggested that its submissions were corroborated 'to a degree' by the available contemporaneous documents a suggestion that relied substantially on the absence of any reference in the documents to the dumping of asbestos cement waste by the defendant at Castledare prior to February 1971.

239 A finding has already been made that no inference can be drawn from the reference to a private dump in the minutes of the 1967 factory managers' conference that asbestos waste was being dumped at Castledare at that time. I also consider that it is not possible to draw a positive inference from the document that asbestos waste was not being dumped by the defendant at Castledare at that time. The reference to a 'private dump' is simply too vague to assist in determining the issue.

240 I accept Mr Clifton's evidence about the following matters and find that:

(a) Mr Clifton joined the Castledare Miniature Railway Inc in about 1966 and before he commenced employment with the defendant.

(b) Mr Clifton requested that the defendant dump asbestos waste at Castledare to be used as fill to enable the miniature railway to be extended. The request was made to the manager of the Welshpool factory, Mr Waters, some time after Mr Clifton commenced employment with the defendant in June 1968.

(c) The defendant commenced disposing of asbestos waste at Castledare following Mr Clifton's request.

241 The effect of those findings, when combined with the findings that have been made about the products manufactured by the defendant at its Welshpool factory and the composition of those products, is that the defendant did not commence dumping waste material at Castledare until some time later than June 1968 and after it had ceased using crocidolite as an input in the products it manufactured at the Welshpool factory. However, it has been found that the defendant was using amosite and chrysotile in its manufacturing processes at the Welshpool factory as at June 1968 and it continued to use those types of asbestos throughout the period during which it disposed of asbestos cement waste at Castledare (as the defendant admitted).

242 I have accepted Mr Clifton's evidence having regard to the following matters:

(a) The reasons that have been previously given for rejecting the plaintiff's submissions concerning Mr Clifton's credibility. In particular, it is significant that Mr Clifton testified that the defendant commenced dumping asbestos waste as a result of his request in circumstances where there was no issue that the plaintiff had contracted mesothelioma and the allegation was that exposure to asbestos dust during his childhood visits to Castledare had caused or materially contributed to his disease.

(b) Mr Clifton was not crossexamined on his evidence that he requested that asbestos waste be dumped at Castledare and that the dumping commenced following that request. That assists in accepting his testimony having regard to the significance of the evidence for the issues raised on the pleadings and the importance that the plaintiff apparently attributed during the trial to the question of when the defendant commenced dumping asbestos waste at Castledare.

(c) It is unlikely that Mr Clifton would recollect requesting that the defendant deliver asbestos waste to Castledare if that had not, in fact, occurred (whereas, childhood memories of playing in piles of waste material about 40 years ago are more likely to be unreliable about matters such as dates). There was no suggestion that Mr Clifton had any association with the defendant prior to commencing to work at the Welshpool factory so that there is no reason to reject his evidence that he made the request after joining the defendant.

243 I accept Mr Winters' evidence that 'many loads' of asbestos waste had been deposited at Castledare prior to his visit in February 1971 to collect dust samples. Consequently, I find that the defendant commenced dumping asbestos waste at Castledare some time prior to February 1971. That places the time at which the defendant commenced disposing of asbestos waste at Castledare at some time after June 1968 and some time before February 1971.

244 That finding is broadly consistent with the evidence of Mr Clifton, Mr Tavani, Mr Polinelli and Mr Wagland. The history of the miniature railway indicated that work commenced on the southern extension in about 1970 and Mr Clifton's evidence was that his request was timed approximately with the decision to construct that extension. Accordingly, I find that the dumping had commenced by no later than some time during 1970 (and see the defendant's submissions in closing at ts 1162). Mr Winters' evidence about the volume of material he observed at Castledare in February 1971 supports that finding.

245 It is possible that the defendant dumped asbestos cement waste at Castledare in 1969; for example, Mr Wagland referred to Brother Dick and Brother O'Connor requiring the residents to spread waste and Mr Dalton referred to Brother O'Connor in his evidence. However, it is not necessary to be more precise than to conclude that the dumping commenced some time after June 1968, when Mr Clifton started working for the defendant, and some time before the end of 1970.

246 It remains to further explain why the evidence of Mr Holmes, Mr Waugh and possibly, Mr Dalton to the effect that the dumping of waste material at Castledare commenced prior to when Mr Clifton stated that he made his request to Mr Waters has been rejected.

247 Observations have already been made on the manner in which Mr Holmes gave his evidence and it has been noted that there were significant differences between his evidenceinchief and under crossexamination concerning when he resided at Castledare. There were other matters arising out of Mr Holmes' evidence that were difficult to reconcile. The latest date that Mr Holmes gave for leaving Castledare was 1965. According to the history of the miniature railway, the first short length of track was laid in 1963 and the first loop (travelling from Niana, through Penrhyn and back through Wormhill Tunnel) was under construction in 'about 1963/64'. The building of that loop of railway may have corresponded with the second stage of construction described by Mr Holmes but that was not clear as the location of the swamp which Mr Holmes used as a reference point was not precisely identified (at ts 244 Mr Holmes stated that the swamp was directly south of where material was dumped near the handball courts but he was not asked to identify the location of the courts; Mr Wagland indicated that to his recollection, the handball courts were located to the north of the oval but, of course, that may not have corresponded with Mr Holmes' memory).

248 According to the Short History, the initial length of track was laid on sand spread across grass. The history did not provide any information concerning the composition of the base for the first oval of track. There were photographs in the booklet from this period. However, the quality of the photographs was such that no finding can be made on the basis of what was depicted. The most that can be said is that they do not show anything that would corroborate Mr Holmes' recollections.

249 Mr Holmes' description of clearing a swamp area might have corresponded with the work which, according to the Short History, was undertaken by Brother Dick in excavating 'the pond' and building the banks in that area. The 'pond' was apparently a reference to the area around which the northern extension of the railway was constructed. Mr Holmes also referred to piles of waste being located near 'Dick's Dyke' and the area where he and other boys went swimming. However, according to the history of the railway, the northern extension, including cleaning out the 'lake', commenced in 1967.

250 Further, there were inconsistencies in Mr Holmes' evidenceinchief on questions of timing. In his supplementary evidenceinchief, Mr Holmes stated that the first two stages of the construction of the railway in which he was involved were probably undertaken in the last two years of his residence at Castledare (ts 242 and 245). However, Mr Holmes estimated in his witness statement that the first stage of the construction of the miniature railway took between 12 and 18 months to complete and the second stage took longer to finish than the first stage (exhibit 25, pars 23 and 34).

251 Consequently, Mr Holmes' evidence was left in a rather confused and uncertain state. Importantly, there was no evidence that directly connected the matters about which he testified with any activity that may have been undertaken by the defendant:

(a) Mr Holmes stated that 'blue rock' was deposited at Castledare and used as fill. The 'blue rock' had fibres that could be pulled off by the boys. However, there was no evidence that any of the production processes employed at the Welshpool factory generated waste material that comprised or contained quantities of 'blue' fibrous rock or that the defendant disposed of any such material, either waste or otherwise (Mr Holmes described there being separate piles of the blue rock or 'harder' material). No other witness described material of that kind being dumped in piles at Castledare.

(b) Mr Holmes stated that trucks depositing waste material came to Castledare frequently; sometimes as many as three or four trucks a day. However, the evidence of Mr Polinelli, Mr Winters and Mr Clifton was that two or three truckloads of waste material were generated at the Welshpool factory each week (Mr Clifton suggested at one point in his evidence that four or five truck loads per week were transported to Castledare - ts 973) and that not all waste material was disposed of by the defendant at Castledare.

(c) There was no evidence that the defendant deposited waste material at Castledare prior to the commencement of construction of the miniature railway. There was also no reference in Mr Holmes' witness statement to waste being dumped at Castledare before the first stage of track construction commenced. His evidence that waste was dumped earlier was given for the first time in crossexamination and at a point in his evidence where his resentment about his treatment while a resident at Castledare was manifest.

(d) Mr Holmes' evidence did not establish that any material that he and other boys may have carted and spread for the purpose of providing a base for the miniature railway was asbestos waste. It is possible, for example, that the material he recollected shifting was sand (and see the findings that follow on the evidence of Mr Waugh). In any event, I am not satisfied on the basis of Mr Holmes' evidence that the material was asbestos waste. As previously noted, senior counsel for the plaintiff, properly in my view, accepted that Mr Holmes' evidence in his witness statement, supplemented by his evidence to ts 238, did not establish that the material described by Mr Holmes was asbestos waste. Mr Holmes' evidence following that concession was not, in my opinion, sufficiently reliable to enable an inference to be drawn that the material to which he referred in his evidence was asbestos waste. He merely described grey fine and dusty material and 'whitish stuff'.

252 I accept that Mr Holmes worked on the construction of the railway while a resident at Castledare. However, I am not prepared to find that his evidence established or supported a finding that the defendant disposed of asbestos waste at Castledare prior to Mr Clifton's request made some time after June 1968. Mr Holmes' evidence in that regard was not reliable and did not, in any event, establish a connection between the material that he stated he observed being deposited at Castledare and the defendant or that the material to which he referred in his evidence was asbestos waste.

253 The plaintiff's closing submissions acknowledged that Mr Holmes had been 'in some respects weak on dates' when giving evidence but contended that his testimony had been corroborated by other evidence and documents. It was said, in particular, that Mr Holmes' evidence of the first two stages of the railway ('around the oval', followed by the northern extension) accorded with 'the chronology' contained in the Short History so that he 'clearly worked on the first part of the railway and the loop around the little pond north of the main station in the Dick's Dyke area' (plaintiff's closing submissions, page 77). However, that submission glossed over the detail of the Short History and Mr Holmes' evidence:

(a) The Short History described three early 'stages' or phases in the development of the railway that were relevant to Mr Holmes' evidence: the construction of the initial 100 ft of track; the subsequent construction of the first loop of rail and then the northern extension around the pond in the area of Dick's Dyke.

(b) According to the Short History, the first 100 ft of track was not commenced until 1963, whereas Mr Holmes stated that the first stage of the railway was built in 1961 or 1962.

(c) More significantly, the Short History stated that work on the northern extension, including clearing the 'pond' near Dick's Dyke, commenced in 1967; that was some time after the latest date given by Mr Holmes for when he ceased residing at Castledare.

254 Mr Waugh gave evidence that he recalled seeing piles of waste material around the grounds of Castledare prior to the departure of his family overseas in November 1967.

255 Mr Waugh's evidence regarding the location of waste material and his recollection of when he observed the waste appeared to be inconsistent with the order in which the miniature railway was constructed according to the Short History. He stated that he recalled piles of waste being located along the riverbank to the southern end of the grounds about 12 months prior to his family's departure overseas in November 1967. The waste was used as a base for a southern extension of the railway.

256 Mr Waugh did not state how he knew that the waste material had been used as a base for the extension of the railway. He could only have learnt of that matter in a way that would assist the court through direct evidence if he had observed the waste material being used for that purpose. However, according to the Short History (which the plaintiff apparently accepted as being accurate), the southern extension of the railway was not commenced until 1970.

257 Mr Waugh also stated that waste material was dumped in the area around the 'man made pond' and the northern extension of the railway. He recalled that the waste material was dumped during the time when the northern extension of the track was being constructed and that this occurred after his family returned to the district in mid1969. However, the history of the miniature railway indicated that the northern extension was undertaken prior to the southern extension and was commenced in 1967.

258 There was another apparent inconsistency between Mr Waugh's recollections and documents tendered by the plaintiff. He stated that he 'phased out' his visits to Castledare after he commenced working in 1972 but he still visited on occasions to see Mr Dalton and Brother O'Connor. However, the staff records reproduced in the history of Christian Brothers (exhibit 124) recorded that Brother O'Connor was only at Castledare in 1968 and 1969.

259 Those matters suggest that Mr Waugh's recollection of the detail of the events that he described in his evidence was fallible. That was understandable not just because of the effluxion of time but also because he was recollecting events that started when he was a young child. I accept that Mr Waugh did observe piles of waste material deposited at the grounds of Castledare on some of his visits. However, I am not satisfied that his evidence established that the piles of waste material had been deposited prior to mid1968 or that an inference can be drawn that any piles of material that he observed around the grounds of Castledare prior to November 1967 comprised asbestos waste that had been dumped by the defendant. It is relevant in that regard that the Short History referred to the use of sand to level parts of the first length of track and Mr Clifton indicated that other types of fill had been used in connection with the construction of the railway prior to asbestos waste being provided by the defendant (ts 967; pars 8 and 18 of exhibit 130). Further, it is obvious as a matter of common sense that piles of material would be created in, for example, undertaking the northern extension (which commenced in 1967 and included the construction of a bridge that was 95 ft in length and which spanned the pond) and in the 'excavation of the pond and the building of banks' in the area of that extension (Short History, page 3).

260 I accept Mr Dalton's evidence that he was involved in the dispersal and watering of waste material. I also accept his evidence that the waste material was delivered by a truck that had the words 'James Hardie' painted on the door and that the waste material was referred to as cement dust. Accordingly, I find that the waste material to which he referred in his evidence was asbestos cement waste delivered by the defendant.

261 However, it will be apparent from the summary of Mr Dalton's evidence that no reliance could be placed on any attempt by him to identify when the events he described occurred. Indeed, the effect of Mr Dalton's evidence was to disclaim any ability to even approximately identify the timing of the events. His references to the involvement of Brother O'Connor were not inconsistent with the findings that I have made on the basis of the evidence of Mr Clifton and Mr Winters; that is, that the dumping commenced some time after June 1968 (although, he did not consistently maintain that Brother O'Connor rather than Brother Dick was present at the time that the waste material was dumped).

The defendant as the only manufacturer of asbestos cement products

262 The final matter relied on by the plaintiff to contend that the defendant had commenced dumping asbestos waste at Castledare by at least 1965 and probably earlier, was an assertion that the defendant was the only manufacturer of asbestos cement products in Western Australia 'during this period'. No evidentiary reference was provided to support the assertion and the only relevant evidence that I was able to locate appeared at ts 576 577 where Mr Winters was asked whether he knew of any asbestos cement manufacturer in Western Australia apart from the defendant 'in 1971 or thereabouts'. Mr Winters replied that he did not know of any other manufacturer. He was then asked whether Wunderlichs had an asbestos cement factory in Western Australia; he replied, not to his knowledge. That evidence could not assist the plaintiff to establish that any asbestos waste found to have been dumped at Castledare from at least 1965, and probably earlier, must have been sourced from and deposited by the defendant.

263 It was not in issue that the defendant ceased dumping asbestos waste sometime in early 1973. The parties accepted as accurate a statement recorded in an internal memorandum by Dr McCullagh concerning a visit he made in midFebruary 1973 to the Welshpool and Rivervale factories (exhibit 174P). The memorandum stated that asbestos dust was 'not now being tipped at Castledare'.

264 The plaintiff contended that the asbestos waste dumped by the defendant was spread widely around the grounds of Castledare (plaintiff's closing submissions, page 90). The defendant contended that the asbestos waste was deposited either directly into the swamp referred to by Mr Clifton in his evidence or immediately adjacent to the swamp (defendant's closing submissions, proposition 22) and that it was probable that some of the asbestos waste was also used to create short sections of roadway (defendant's closing submissions, proposition 25). The defendant further contended that the asbestos waste was not dumped or placed in 'piles' or 'mounds' around the grounds of Castledare and that there was no direct evidence as to who caused the asbestos waste to be used for making sections of roadway. It was said, however, that the defendant only became aware that the asbestos waste was being used for that purpose as a result of Dr McNulty's letter to the defendant's general manager in November 1972 (exhibit 162B).

265 The difference between the parties on where the asbestos waste was dumped was significant as the defendant contended that it was unlikely that the plaintiff was exposed to any asbestos dust and fibre during his visits to Castledare having regard to where, and the manner in which, it says that the waste material was dumped.

266 I have found later in these reasons that the interhouse letter from Mr Glanville forming part of document '689' does not provide sufficient evidence to establish that the defendant took steps to cover any particular area of asbestos waste at Castledare following Dr McNulty's visit. Consequently, in the section that follows I refer to Ms Lowes' evidence of what she observed during the family visits at Castledare without differentiating between the time of each visit. Further, I accept that what she described was asbestos waste that had been dumped by the defendant.

267 The starting point for determining this issue is Dr McNulty's evidence of his visit to Castledare with Mr Moyle in November 1972. I accept that the notes that they made of their visit were an accurate account of what they observed. The notes were made contemporaneously with the visit and for a serious purpose. Further, I accept Dr McNulty's identification of the material described in the file notes and correspondence and depicted in the photographs that he sent to the defendant as asbestos waste. I make that finding having regard to his background and knowledge of asbestos as summarised earlier in the reasons.

268 Dr McNulty's letter to the defendant's general manager (exhibit 162B) and Mr Moyle's file note indicated that the waste was being used to fill a swamp at about the time of their visit. That was consistent with Mr Clifton's evidence. However, the photographs that Dr McNulty took during the visit also indicated that asbestos waste had been distributed to at least one other area within the grounds of Castledare that was away from the swamp at Squatter's Bridge (being the location of the swamp referred to by Mr Clifton in his evidence). That area was depicted in the photograph that was exhibit 6. The photograph indicated that asbestos waste had been placed adjacent to the railway line and on the edge of the oval which was located to the west of Niana and the coach tearooms. There was a hut shown on the righthand side of the photograph that was identified by Mr Clifton as being a signal box located on the north side of Niana and near the tearooms (and see Ms Lowes' evidence at ts 84 and Mr Wagland's evidence at ts 206). That indicated that, at least by November 1972, asbestos cement waste had either been dumped at or carted to an area that was diagonally across from the swamp identified by Mr Clifton and separated by the circle of track that passed between Niana, Penrhyn and Wormhill Tunnel. Mr Wagland described the photograph as indicating the appearance of the pathways that were made of asbestos cement waste (ts 206).

269 Similarly, exhibit 7 depicted a dirt road that had patches of white that appeared to be identified by Dr McNulty as asbestos waste (having regard to what was shown in the other photographs that he took). Ms Lowes identified the photograph as showing the road that 'led up to Castledare' (ts 85), by which I infer she meant the road travelling from the entrance to Castledare to where the family car was parked during visits (and see ts 92). Mr Waugh also identified the road shown in the photograph as leading into the grounds from the entrance to Castledare (exhibit 49, par 17). It is not clear whether the road was that drawn by Mr Tavani on exhibit 22A was leading from the entrance to the point he marked as 'H' or whether it formed part of the road that he drew as extending around the western and southern sides of the oval. According to Mr Tavani, cars parked in areas to the north and south of the oval.

270 Part of the road depicted in exhibit 7 appeared to have been made of sand; see the crossexamination of Ms Lowes at ts 92. However, there were also white patches similar in appearance to those that were shown in the other photographs taken by Dr McNulty. I have already stated that I accept Dr McNulty's evidence that each photograph depicted asbestos waste (and there would have been no point in taking the photographs otherwise). Further, Dr McNulty and Mr Moyle referred to the asbestos waste being covered with a layer of sand, with Mr Moyle observing that the asbestos waste underneath was exposed by people moving across the paths.

271 Similarly, the photograph that was exhibit 23 depicted an area that was identified by Mr Tavani as being to the southwest of the oval and again, a little distance from Squatter's Bridge. The area was marked '4' by Mr Tavani on exhibit 22A. I would estimate the distance between Squatter's Bridge to the point marked '4' by Mr Tavani to be about 80 m 100 m based on my inspection of the site.

272 There was no identification of the location of the area shown in the photographs that were exhibits 131 and 133. Mr Clifton stated that he did not recognise the area depicted in exhibit 131 but had a vague recollection of the structures shown on the righthand side of exhibit 133. He was not asked to further identify the area shown in that photograph (ts 957 959).

273 Mr Clifton's statement that the area shown in exhibit 131 did not look like Castledare formed part of the basis on which senior counsel for the defendant indicated in the course of the hearing that the defendant did not accept that the photographs tendered by the plaintiff were necessarily those taken by Dr McNulty during his visit to Castledare and later sent to the defendant's general manager: see ts 1087. It has been found that each of the photographs forming attachment 6 to Dr McNulty's affidavit was a photograph taken by Dr McNulty during his visit to Castledare (and see pars 23 24 of exhibit 242). Exhibit 131 formed part of attachment 6 and so I find that the photograph depicted an area at Castledare where asbestos cement waste had been dumped. The photograph showed piles of waste and I have found in the next section of the reasons that the photograph was of the dumping site to which Dr McNulty and Mr Moyle referred in their file notes and which was adjacent to the swamp. There is no reason to conclude that the swamp to which they referred in their file notes was not the swamp described by Mr Clifton as being located at Squatter's Bridge. That is consistent with the description of the land over which the southern extension of the track passed that appeared in the Short History and with the evidence given by Mr Tavani and Mr Waugh of a swampy area to the south of the 'fort' (exhibit 22, par 14 and exhibit 49, par 10).

274 The other important aspect of Dr McNulty's evidence for the question of where the asbestos waste was located was the observation recorded in his file note that the asbestos cement waste was to be found in areas that were accessible to members of the public and residents at Castledare (Mr Moyle's file note contained an observation to the same effect and in his letter to the defendant's general manager, Dr McNulty stated that the photographs showed that children had ready access to asbestos waste (exhibit 222)).

275 Ms Lowes, Mr Wagland, Mr Tavani, Mr Waugh and Mr Dalton gave evidence that waste material was distributed around the grounds of Castledare:

(a) Mr Wagland, Mr Tavani and Mr Dalton gave evidence that waste material was laid on tracks around the grounds of Castledare. Ms Lowes also referred to a dirt road covered with white material.

(b) Ms Lowes and Mr Waugh identified the road shown in the photograph that was exhibit 7 as leading into the grounds of Castledare from the entrance (ts 85 86; exhibit 49, par 17).

(c) Mr Wagland, Mr Tavani and Mr Waugh recalled waste material piled in an area to the south of the oval (which they both located as being to the west of the miniature railway line). Mr Tavani identified the area as corresponding with that shown in the photograph taken by Dr McNulty that was exhibit 133. Mr Waugh identified the area depicted in that photograph as near the swampy and lowlying area to the southern end of the property where asbestos cement waste was used as a base to extend the railway.

(d) Mr Wagland, Mr Tavani and Mr Waugh recalled waste material located to the north of the oval. Mr Tavani, Mr Waugh and Mr Clifton indicated that the photograph that was exhibit 6 depicted the start of the track at the northern end of the oval and adjacent to the miniature railway. Ms Lowes referred to material being located near where the children waited to board the train (which I assume was near Niana) and the shop (which I infer was the 'coach tearooms').

(e) Ms Lowes stated that there were piles of white material located near where the family car was parked when they visited Castledare. According to Mr Tavani, parking was provided in grassed areas to the northern and southern sides of the oval. Ms Lowes did not identify in her evidence whether the car park she recalled was to the north or south or on both sides of the oval. However, her evidence was consistent with other evidence that piles of waste material were located near the oval. Mr Dalton referred to waste material being spread where cars became bogged. Mr Waugh stated that waste had been dumped near the entrance to the grounds.

276 There are obvious difficulties in making precise findings about where the asbestos cement waste was dumped there are uncertainties concerning the location and perspective of the photographs taken by Dr McNulty; there are consequently, difficulties in relating the photographs to the plan forming part of exhibit 1; there was no indication of distances in the plan (and it must be remembered in viewing the plan that it depicts a miniature railway) and there is the overarching problem of recollecting matters from long ago. However, I am satisfied that the evidence established the following matters and make findings accordingly:

(a) The waste material referred to by Mr Wagland, Mr Tavani and Mr Dalton was asbestos cement waste. I make that finding for the following reasons:

(i) I accept that Mr Wagland's subsequent experience as a builder provided an appropriate basis for his reconstruction that the waste material that he recollected was asbestos waste. Mr Wagland gave his evidence in a careful and considered manner. He was a resident at Castledare at a time when it has been found that the defendant was dumping waste material at that site.

(ii) I accept that Mr Tavani was describing asbestos cement waste in his evidence about what he had observed. I further accept that he understood at the time that he attended Castledare that the waste material he recalled contained asbestos from what he was told by Brother Dick. Although that was hearsay evidence, it should be accorded weight (there having been no objection as to admissibility) given that Brother Dick's identification of the waste as containing asbestos was most likely to be accurate (asbestos was a commonly used material in the 1960s and 1970s and Brother Dick would apparently have been in a position to have known what it was that was being disposed of by the defendant at Castledare, particularly given the evidence concerning the use of the waste to make paths around the grounds). There was no reason to doubt Mr Tavani's recollection of what he was told by Brother Dick - the reason he gave for that recollection was plausible and he was not challenged on that evidence in crossexamination.

(iii) I accept Mr Dalton's evidence that the material he described was 'cement waste'. That evidence was not challenged. Again, the description would reflect something that he was told by others but there is no reason to doubt the accuracy of what he was told and which resulted in him referring to the material as 'cement dust'. The material was then further identified by his recollection of the sign on the truck that was used to transport the material.

(b) Asbestos waste was dumped by the defendant in the vicinity of the swamp at Squatter's Bridge. The area was to the south or southeast of the oval, somewhere near the area shown in exhibit 133.

(c) The road shown in exhibit 23 was on the southern side of the oval. The road swung around a tree and then travelled down to the area depicted in exhibit 133 (the wooden structure made of poles to the righthand side of exhibit 133 can be made out at the lefthand side of exhibit 23 and Mr Tavani described the track as leading down to the area where he and other residents played in the asbestos waste - ts 220). I infer that this was the approach road referred to by Dr McNulty and Mr Moyle it leads to the swamp area, it was partially but lightly covered with sand and the edges of the road appear to be friable. Asbestos waste was used as a base for the road.

(d) Asbestos waste was used as a fill in the swampy area around and to the south of Squatter's Bridge and as a base for parts of the miniature railway in that area.

(e) Asbestos waste was also used to make roads or paths at other points around the grounds of Castledare. They are shown in exhibits 6 and 7 and are referred to in the evidence of Mr Wagland, Mr Tavani and Mr Dalton. I accept the evidence of Mr Wagland, Mr Tavani and Mr Dalton on this point having regard to the consistency of their evidence (and the fact that they were not crossexamined on this aspect).

(f) There was asbestos waste located at the northern end of the oval, to the immediate north of Niana, as depicted in the photograph taken by Dr McNulty and Mr Moyle that was exhibit 7 and around the area of and beyond the coach tearooms as shown on the plan of the miniature railway. I accept the evidence of Mr Wagland and Mr Tavani to that effect. The finding is consistent with Ms Lowes' evidence. However, there was no evidence that the defendant deposited the waste material at that point; it is possible that it was transported there by Brother Dick or members of the Castledare Miniature Railway Inc.

277 It is also not possible to make a finding on the evidence as to whether asbestos waste was dumped by the defendant at points around the grounds to facilitate its use for making roads and paths or whether it was carted by or under the supervision of the Brothers from the dumping site described by Dr McNulty and Mr Clifton. However, it is possible, in my view, to conclude that the photograph that was exhibit 131 depicted the area in the vicinity of the swamp at Squatter's Bridge that Dr McNulty and Mr Moyle described as a dump site for the asbestos waste. The area was not identified by any witness. However:

(a) I have accepted Dr McNulty's evidence concerning the photographs forming attachment 6 to his affidavit (exhibit 131 being one of those photographs). The photographs were taken at Castledare and show asbestos waste.

(b) Dr McNulty and Mr Moyle referred to a single dumping site located at the swamp, which I have found was the swamp described by Mr Clifton as being located at Squatter's Bridge. They referred to loads of waste being dumped at the site. Mr Winters referred to observing many loads of asbestos waste in the area, although his visit was over 18 months earlier to that of Dr McNulty and Mr Moyle.

(c) It can be readily inferred that the purpose of taking the photographs was to depict what was described in the file notes made by Dr McNulty and Mr Moyle and to illustrate what was subsequently communicated to the defendant. It is highly likely that a photograph of the dump site would have been taken; indeed, it is almost inconceivable that they would take photographs of the asbestos waste but not of the dumping site that they observed (there being only one site to which they referred).

(d) Exhibit 131 depicted a substantial quantity of asbestos cement waste in an open area. The photograph appears to show a 'dump site'.

278 The implication from the file notes made by Dr McNulty and Mr Moyle was that the area that was the dumping site was accessible to members of the public. It might correspond with Ms Lowes' description of an area into which her children would disappear 'that was full of piles of white material' (although, that area might have been to the north of Niana and around the coach tearooms). The tower depicted on the map of the miniature railway had been removed by the time I inspected the site. However, the distance where the tower would have been located according to the map and Squatter's Bridge was about 50 m and the distance between the tower and Niana was about 60 m 70 m. Consequently, the dumping site referred to by Dr McNulty and Mr Moyle was not very distant from Niana, the oval and the car park on the south side of the oval. The distance between Niana, the signal box depicted in exhibit 6 and the apparent location of the coach tearooms was even less.

279 I have not found that waste material was also dumped near the entrance to the grounds as suggested by Mr Waugh. He described a substantial amount of material dumped at the site (which, on his evidence, was separate from the area around the swamp) some time after 1967. Mr Wagland and Mr Tavani were residents at Castledare in 1971 and 1972 1973 respectively but did not refer to waste material being deposited in that area and Dr McNulty and Mr Moyle only recorded one dumping site in their file notes. I am not satisfied that Mr Waugh's recollection on this aspect is reliable in the absence of some corroborating evidence.

280 The plaintiff contended that the defendant did not cover or wet the asbestos waste following dumping nor did it take any step to prevent access to the waste material. It also contended that the defendant did not provide any warning to the Christian Brothers, the Castledare Miniature Railway Inc or to visitors about the risk of harm from being exposed to asbestos and the need to avoid exposure to the waste material.

281 The defendant contended that the asbestos waste was not dumped or placed in 'piles' or 'mounds' around the grounds of Castledare and even if it was, there was no evidence that it created the piles or mounds (defendant's closing submissions, proposition 24 and par 80). However, it accepted that there was evidence that 'some things accumulated into piles at Castledare' (defendant's closing submissions, par 86). Significantly, the defendant referred in its closing submissions to Mr Clifton's evidence that he saw the waste material dumped by the defendant enter the swamp and harden over time but it did not otherwise submit that it took any step after the waste was dumped. It also did not contend that it provided any warning concerning what had been dumped or the risk of harm from being exposed to the dumped material.

(a) The defendant dumped the asbestos cement waste that it transported to Castledare in piles. That finding inevitably follows from the evidence about how the waste was collected in the Welshpool factory, the volume of waste, how often it was taken away from the factory and the fact that a tip truck was used to transport and dispose of the waste. It is confirmed by the evidence of all of the witnesses who testified about what they observed at Castledare and whose evidence I have accepted.

(b) Some waste material may have been tipped directly into the swamp and the immediate surrounds at Squatter's Bridge. However, asbestos cement waste was deposited and left by the defendant in piles that accumulated at a 'dump site' adjacent to Squatter's Bridge. That finding is made having regard to:

(i) The evidence of Mr Winters and Dr McNulty. Although they each only attended the site on one occasion, they observed a dump site at which asbestos cement waste had accumulated in a pile or piles. Their observations were made about 20 months apart. The concerns that they both expressed in their contemporaneous documents are consistent with a finding that the asbestos cement waste was exposed, was not apparently being fully absorbed by the swamp and its immediate surrounds and had accumulated in a pile or piles. There is no common sense reason why the waste would have been accumulated into piles of the kind depicted in exhibit 131 by the Christian Brothers following dumping and no evidence that this occurred (Mr Wagland, for example, referred to Brother Dick requiring the boys to flatten the mounds of waste following dumping).

(ii) The evidence of Ms Lowes, Mr Winters, Mr Wagland, Mr Tavani and Mr Waugh that there were piles of waste.

(iii) The fact that asbestos cement waste was used for other purposes besides filling the swamp.

(iv) The fact that even on the defendant's case, the asbestos cement waste was disposed of at Castledare over at least a twoyear period. It is most unlikely that throughout that time heavy trucks could access the swamp so as to tip their load directly into or onto moist ground into which the waste material would be absorbed rather than accumulate in piles.

(v) The evidence of Mr Clifton, on which the defendant relied, to the effect that he did not recall there being mounds of asbestos cement waste around the grounds of Castledare was not necessarily inconsistent with a finding that waste material had accumulated at a site adjacent to the swamp area at Squatter's Bridge.

(c) The defendant took no steps to systematically cover the asbestos cement waste after it was dumped. There was only a slight suggestion in the evidence that the waste was covered and nearly all of the evidence (including that given by Mr Clifton) was to the contrary. The references in the evidence to the use of sand as a cover were to its use to cover roads or paths (see, for example Dr McNulty's file note; exhibit 240, attachment 4). The defendant did not submit in closing that there was evidence that it had covered the waste material following dumping (and see defendant's closing at ts 1172 1173). There was no evidence concerning the source of Dr McCullagh's reference in exhibit 67 to the waste material being covered with ash; Mr Winters did not see any fly ash at the site during his visit (ts 582) and no witness referred to ash being present. The only other evidence that suggested that the waste was covered was in Dr McCullagh's inter-house letter of March 1972 (exhibit 68). No witness gave evidence of the steps that he described as having been taken. The only evidence that might support the accuracy of what was recorded in the inter-house letter was the fleeting references to sawdust in the evidence of Mr Clifton and Mr Dalton. However, Mr Clifton stated that sawdust and other forms of fill were used prior to when the defendant commenced providing asbestos waste. It is not clear from the interhouse letter whether Dr McCullagh actually visited Castledare (the sense of the letter is that he did not) and I am not prepared to find that the waste was routinely covered on the basis of the statement made in the letter. The statement was inconsistent with the balance of the evidence (including in what was reported in Mr Winters' survey of waste tips made a few months later (exhibit 70) and the file notes made by Mr Moyle and Dr McNulty of their visit to Castledare towards the end of 1972).

(d) The defendant did not systematically wet the waste material after it had been dumped. Mr Clifton stated that the material was not wetted and that was consistent with the evidence of Mr Winters as to what occurred on the one occasion he observed the waste being deposited at Castledare. It was also consistent with the state of the asbestos cement waste observed by Dr McNulty and Mr Moyle. The only evidence that the defendant wetted the waste material was the hearsay statement made in the document prepared by Mr Winters in June 1972 (exhibit 70) that the waste material disposed of at Castledare was not covered after dumping but was wetted and Dr McCullagh's interhouse letter of March 1972 (exhibit 68).

(e) The asbestos waste that was used to make roads and paths was wetted (to ensure that it hardened) and lightly covered with sand. That was not done by the defendant but by or under the supervision of the Brothers. However, as the file notes made by Dr McNulty and Mr Moyle recorded, over time the asbestos waste base to the roads and paths was exposed as the covering sand was shifted through use and by the wind.

(f) The defendant did not warn visitors to Castledare that asbestos cement waste had been deposited at the grounds nor did it provide any form of warning about the possible risks from exposure to the waste to the Christian Brothers, the members of The Castledare Miniature Railway Inc or to residents and visitors.

283 I have already indicated that it is not possible to make a finding about whether the defendant dumped asbestos cement waste at points around the grounds of Castledare to facilitate its use in making roads and paths. There was no evidence that it was involved in using the asbestos waste that had been dumped at Castledare for that purpose. The evidence of Mr Wagland, Mr Tavani and Mr Dalton indicated that Brother Dick and/or Brother O'Connor were involved in shifting and spreading asbestos waste and I find that they were responsible for the use of the waste for the purpose of creating the roads and paths shown in the photographs taken by Dr McNulty.

284 Findings have been made in this and the previous section of the reasons that are inconsistent with parts of Mr Clifton's evidence that the waste material was not used to just fill the swamp but was also dispersed around the grounds of Castledare, that it was used to make roads and paths and that it accumulated at a dump site and elsewhere. The differences between Mr Clifton's evidence and the findings that have been made should not be overstated; the differences are nuanced and Mr Clifton was seeking to recall details from many years ago. However, in making findings about where the waste material was found around the grounds of Castledare and what happened on the waste being dumped I have had regard to:

(a) the weight and consistency of the evidence given by Dr McNulty, Ms Lowes, Mr Wagland, Mr Tavani, Mr Winters and Mr Dalton (and I also accept that Mr Waugh observed piles of asbestos waste at Castledare);

(b) the concessions that were made by Mr Clifton in crossexamination about the extent of his personal knowledge.

What happened after the defendant ceased dumping at Castledare?

285 The defendant submitted that it was probable that by early 1973 it had remedied any problems that existed at Castledare (defendant's closing submissions, proposition 29). The reference to 'problems' in that submission was to matters identified by Dr McNulty in his letter dated 14 November 1972 (exhibit 162B) (defendant's closing submissions, proposition 28). The defendant conceded that the evidence was not specific but 'such evidence as there is tends to suggest that such problems as had been outlined by Dr McNulty were corrected by [the defendant]' (defendant's written submissions, par 104). That submission was made prior to the tender of document '689'.

286 Some correspondence relating to Dr McNulty's visit was tendered at the trial. Exhibit 162C was a letter dated 22 December 1972 from Mr Glanville that was written in reply to Dr McNulty's letter of 14 November 1972. Mr Glanville wrote, 'the matters to which you refer in your letter are in hand, with some completely rectified'. The letter did not further describe the steps taken or proposed to be taken by the defendant to remedy the matters identified by Dr McNulty. Exhibit 162D was a letter from Dr McNulty dated 15 January 1973 written in reply to Mr Glanville's letter. Dr McNulty expressed confidence in his letter that the problems raised by him would be resolved.

287 The bundle of correspondence and memoranda that comprised document '689' filled in some gaps but did not disclose what, if any, steps had been taken to address Dr McNulty's concerns about the dumping of waste material at Castledare apart from the inter-house letter from Mr Glanville to Mr Palfreyman dated 21 December 1972 to which reference has already been made. In my view, the reference to covering the 'area in question' in that inter-house letter is insufficient to establish that the defendant did actually cover the asbestos waste at Castledare some time in 1973 or prior to any of the plaintiff's visits to Castledare. I make that finding for the following reasons:

(a) I accept the evidence of Mr Tavani and Mr Waugh that there was no covering applied to the waste in late 1972 or 1973. There is no basis for rejecting their evidence. Their further statements were tendered by consent and without any application to reopen to crossexamine on the statements. I had no reservations about the evidence given by Mr Tavani during the trial. Although I have expressed reservations about the reliability of some of Mr Waugh's recollections, his evidence in his further statement was corroborated by Mr Tavani and must be assessed in the light of its admission by consent.

(b) I read Mr Glanville's interhouse letter as containing a statement of intention. I do not consider that an inference can be drawn that the waste must have been covered pursuant to that expression of intent. It would appear from the photographs taken by Dr McNulty of the dump site that the waste material could not be easily and conveniently covered with some suitable material that would not be eroded by the wind. Effective covering would also apparently be inconsistent with the use of the waste as fill. Further, the documents referred to later in the reasons on the defendant's policy for waste disposal (in particular, exhibit 144) indicate that the defendant appreciated by this time that areas such as roads or paths made from asbestos waste should be covered with bitumen or a similar surface to prevent the waste from being blown about. However, Ms Lowes did not refer to any roads or paths being bitumenised.

(c) Mr Clifton was a member of the Castledare Miniature Railway Inc until 1975 (exhibit 130, par 16). He made no reference in his evidence to the defendant taking any steps to cover the waste at any time.

(d) Although Ms Lowes' evidence referred to 'white material', I had little doubt that she was describing asbestos waste. The difference between the white material that she described and for example, sand used as a covering, would have been obvious. Her evidence accorded with the observations recorded by Dr McNulty and Mr Moyle about their visit to Castledare.

What did the defendant know about the dumping and dispersal of asbestos cement waste at Castledare?

288 I have found that Brother Dick and/or Brother O'Connor were involved in using asbestos waste deposited by the defendant for the purpose of constructing roads and pathways around the grounds of Castledare. It may be readily inferred that the defendant's truck drivers who carted the waste material to Castledare must have been aware that waste material had been used as a base for the short road leading to the dumping site described by Dr McNulty and Mr Moyle.

289 There was no evidence as to the route taken by the defendant's trucks on entering the grounds of Castledare to reach the dumping site identified by Mr Clifton, Dr McNulty and Mr Moyle. No finding has been made on whether the defendant dumped asbestos waste at other sites around the grounds of Castledare. However, my visit to site of the miniature railway indicated that it was highly likely that the truck drivers would have been aware that asbestos waste was being used to form paths in the vicinity of the railway and for any purpose for which the waste may have been used apart from fill for the swampy area around Squatter's Bridge. That was so even if the approach road that they took passed along the southern side of the oval. The distance between, for example, Niana and Squatter's Bridge is relatively short.

290 The relevance of the defendant's knowledge about how the asbestos waste was being dumped and used at Castledare is considered later in the reasons in the section dealing with breach.

Summary of findings on the disposal of asbestos waste at Castledare

291 The principal findings that I have made concerning the disposal by the defendant of asbestos waste at Castledare are that:

(a) The waste material dumped by the defendant at Castledare came from its Welshpool factory.

(b) The waste material comprised asbestos cement waste and not asbestos waste. It was waste generated from the manufacture of products that were composed of cement, asbestos, silica and in some instances, cellulose fibre.

(c) The defendant ceased using crocidolite in products manufactured at its Welshpool factory in about June 1967.

(d) In the late 1960s/early 1970s, the asbestos content of the products manufactured at the Welshpool factory ranged between 8% and 15%. In the 1970s, products contained approximately 2% amosite (as a percentage of the total product) and some flat sheet products included a similar quantity of amosite (the balance of the asbestos content being chrysotile). Amosite was used as a constituent from at least 1966. It is not possible to determine from the evidence when the defendant commenced using chrysotile at Welshpool, although it was being used from at least about June 1967 when the defendant ceased using crocidolite. The ratio of amosite to chrysotile varied between products but was approximately 20:80.

(e) The asbestos waste dumped at Castledare did not include 'raw' asbestos fibre. The waste material did, however, include fine dust and chips and scraps of board. Respirable asbestos fibres would be released from the waste material.

(f) The defendant commenced dumping asbestos waste at Castledare as a result of a request made by Mr Clifton. That request was made some time after he commenced working at the Welshpool factory in June 1968.

(g) Consequently, the defendant commenced dumping asbestos cement waste at Castledare some time after June 1968 and after it had ceased to use crocidolite in the products that it manufactured at the Welshpool factory.

(h) The dumping of waste material by the defendant at Castledare had commenced by no later than some time in 1970.

(i) The waste material dumped at Castledare included amosite and chrysotile asbestos dust and fibre.

(j) The defendant ceased disposing of asbestos cement waste at Castledare in early 1973.

(k) The asbestos cement waste was dumped in and/or carted to parts of the grounds of Castledare that were accessible to residents and visitors.

(l) Asbestos waste was dumped by the defendant in and around a swampy area located in the vicinity of Squatter's Bridge. It accumulated in piles of waste material. It was used as fill and to form a base for parts of the miniature railway.

(m) Asbestos waste was also used to make roads and paths in the vicinity of the miniature railway and was also placed to the north and northwest of Niana. It is not possible to make any findings about whether the waste material was dumped at points around the grounds of Castledare by the defendant to facilitate its use for that purpose or whether it was carted to those areas by or under the supervision of the Christian Brothers.

(n) The asbestos waste was not systematically covered or wetted immediately on being dumped. The waste material that was used to make roads and paths was wetted and covered but this was done by or under the supervision of the Brothers. The defendant made no arrangements for the covering or wetting of the dumped waste material.

(o) Asbestos waste that was used as a base for roads and tracks was exposed over time through the effect of use and weathering.

(p) The defendant did not undertake any work to remediate the site following Dr McNulty's letter of November 1972 by, for example, arranging for the asbestos waste to be covered or removed or buried.

The plaintiff's exposure to asbestos dust and fibres while visiting Castledare

292 It follows from the findings that have been made concerning Ms Lowes' evidence, the composition of the waste material dumped by the defendant at Castledare and where that material was dumped that I am satisfied that:

(a) asbestos waste was located in the vicinity of the miniature railway and in areas to which visitors to the grounds had access;

(b) asbestos waste was to be found in piles located near the miniature railway, including in an area to the south of the oval and adjacent to the swamp at Squatter's Bridge and in an area a short distance north or north-west of Niana and around the coach tearooms;

(c) the white material described by Ms Lowes in her evidence was asbestos waste and not sand - that is consistent with the evidence and the findings that have been made about the dumping of the waste material at Castledare;

(d) during his visits to Castledare, the plaintiff played in piles of waste material that comprised or included asbestos waste and in areas where asbestos cement waste had been used to form roads and paths as described by Ms Lowes;

(e) the plaintiff was exposed to asbestos dust and fibre during his visits to Castledare;

(f) the asbestos dust included respirable amosite and chrysotile fibres.

The exposure of residents and visitors to the waste material

(a) It was foreseeable that children would visit the grounds of Castledare. The Castledare miniature railway was obviously an attraction for young children. Further, the open space of the grounds, the oval, the proximity to the river and the swampy bush areas forming part of the grounds were also obvious attractions for children in the neighbourhood if they were permitted unrestricted access to the grounds. I find on the evidence that during the time that the defendant disposed of asbestos waste at Castledare, children were allowed to or were able to access at least that part of the grounds occupied by the miniature railway and around which the waste had either been dumped or carted. The miniature railway was at the rear of the site away from the orphanage buildings and very close to the edge of the river.

(b) It was foreseeable that children residing at Castledare would be attracted to playing in the area where the asbestos waste was dumped again, because of the proximity of the area to the miniature railway, the river, the oval and the bush (and, of course, the fact that they did is indicated by references in the evidence that 'the fort' was located nearby). Presumably, Dr McNulty was informed by Brother Dick that the dumping site was out of bounds to residents. However, Mr Wagland and Mr Tavani did not indicate that there were restrictions on where they could go around the grounds at Castledare and Dr McNulty noted that boys were playing in the vicinity during his visit. Mr Winters' note of his visit in February 1971 referred to children having access to where the asbestos was being dumped.

(c) It was foreseeable that children especially small children would have played in and with the asbestos dust. That finding includes both boys resident at the orphanage (who were primary school aged) and children visiting the grounds.

(d) It was foreseeable that residents and staff at Castledare and visitors to the grounds would be exposed to asbestos dust and respirable fibres released by the wind, vehicle movements, the dumping of the waste and other disturbances.

294 Paragraph 7 of the statement of claim pleaded the source and content of the duty of care allegedly owed by the defendant and the class of persons to whom the duty was said to be owed. In summary:

(a) the source of the duty was said to be the defendant's knowledge, actual or imputed, of the various matters pleaded in par 6 of the statement of claim;

(i) to dispose of asbestos waste in a manner that prevented the release of asbestos fibres into the atmosphere, both at the time of dumping and afterwards;

(ii) to cease dumping asbestos waste in a fashion that allowed the release of asbestos fibres at the time of the dumping and afterwards;

(iii) to not use or allow to be used asbestos waste for road works or road surfacing and to warn occupiers or land owners that asbestos waste must not be used for that purpose;

(iv) to not use asbestos waste for the miniature railway base and to warn occupiers or land owners that asbestos waste must not be used for that purpose;

(v) to warn (by signs and other measures) residents and visitors, including the plaintiff and his parents, of the risks of inhaling asbestos (including mesothelioma, lung cancer and asbestosis) and that these diseases were painful, almost always fatal and effectively untreatable; that asbestos had been dumped in the area and used as a road covering and as the base for the miniature railway and had been spread by disturbance including by wind, foot and vehicle movement; that steps should be taken to avoid touching, disturbing, moving, handling and/or otherwise disturbing asbestos waste and that the residents and visitors should avoid inhaling asbestos fibres;

(vi) to warn visitors that they should consider not visiting because of the risk of asbestos inhalation;

(c) the class of persons to whom the duty was owed was said to be persons who resided at or visited the area of Castledare and the miniature railway.

295 The matters allegedly relevant to the existence of a duty of care and about which the defendant knew, or ought to have known, were extensive: the hazardous effects of exposure to asbestos, the relationship between exposure and the risk of harm, the circumstances surrounding the disposal of waste material at Castledare, the manner in which asbestos waste ought to have been disposed of and the ways in which residents at and visitors to Castledare could have been exposed to asbestos dust and fibre.

296 The defendant denied those allegations. It further alleged in answer to the plaintiff's plea of causation that it did not know, nor should a person in its position have known, that any exposure to asbestos dust and fibre that the plaintiff might have experienced during his visits to Castledare constituted a foreseeable risk of injury of the kind alleged by him (par 7 of the defence).

297 It was said in the plaintiff's written submissions in opening that a duty of care arose in two ways. First, 'by dumping material that was known to be fatal if inhaled, [the defendant] created a danger and accordingly was required to take reasonable steps that no one would suffer a risk of injury which might be foreseeable from the danger', reference being made to Johnson v Rea Ltd [1961] 3 All ER 816; 1 WLR 1400 (plaintiff's opening submissions, par 107). Second, the defendant supplied the asbestos cement waste 'as a product for the use by the owners of [Castledare] or the operators of the railway for landfill and road construction' so that it owed a duty as 'the supplier of a product, supplied for a known purpose, containing a danger from such use, of which the defendant knew or ought to have known' (pars 124 125), reference being made to Suosaari v Steinhardt [1989] 2 Qd R 477; (1989) Aust Torts Rep 80268; Rolls Royce Industrial Power (Pacific) Ltd (Formerly John Thompson (Australia) Pty Ltd) v James Hardie and Coy Pty Ltd [2001] NSWCA 461 and CSR Ltd v Wren (1997) NSWLR 463; (1998) 15 NSWCCR 650.

298 There were echoes in the plaintiff's written submissions of the long discarded concept of an 'inherently dangerous chattel' (as to which see Fleming J, The Law of Torts (9th ed, 1998) 544 545). However, putting that to one side, there were difficulties with the way in which the plaintiff formulated the first basis on which it was contended in the opening that the defendant owed a duty of care. Knowledge of the toxicity of asbestos will clearly be a relevant factor in determining the existence of a duty of care: see, for example, the comments of Fitzgerald P in Bale v Seltsam Pty Ltd [1996] QCA 288. However, the legal and factual analysis of whether a duty was owed by the defendant should not proceed on such an undifferentiated basis. As will be seen, the High Court has emphasised that questions concerning the existence and scope of a duty of care should be determined by reference to the actual circumstances of the case. That will require a more sophisticated analysis, primarily to accommodate matters such as the circumstances in which the plaintiff was exposed to respirable asbestos fibre, the incremental development of knowledge about the risk of harm from exposure to asbestos and the parameters that define the relationship between asbestosrelated diseases and exposure to asbestos - dose, fibre type and latency period.

299 The approach taken in the plaintiff's closing submissions was broadly to contend for a duty owed either by a combination of the reasonable foreseeability of harm and other 'salient features' (where the 'danger' created by dumping asbestos cement waste at Castledare was a significant but not exclusive feature) or because the defendant was the supplier of a product (asbestos waste). The first of those bases was more consistent with current authority on the determination of duties of care than the approach outlined in the plaintiff's opening submissions.

300 The defendant contended in its written closing submissions that the risk of injury to the plaintiff was not reasonably foreseeable as (par 179):

(a) Any duty was to be defined by reference to a limited class of persons: visitors to the Castledare miniature railway who 'might attend only once or twice in a lifetime and ... who could not attend the site more often than once per month'. A person falling in that class would only 'ever extremely rarely' be exposed to asbestos through visiting Castledare. Reference was made to Sydney Water Corporation v Turano [2009] HCA 42; (2009) 239 CLR 51.

(b) The waste material comprised asbestos cement that contained chrysotile and a small amount of amosite.

(c) At the relevant time (on the defendant's case, 1971 to 1974) noone, including international health and regulatory authorities, recognised that a person in the class within which the plaintiff came could have been at any risk of injury.

301 In formulating the content of the alleged duty, the plaintiff placed considerable emphasis on cases in which it had been found that there was a duty to warn of a risk of harm in using a product. Consequently, it was submitted that the duty in this case 'necessarily encompassed a need to immediately warn the owners of the site and the operators of the railway of the risk of inhalation of asbestos from the asbestos waste so that they could take action to warn patrons like the Plaintiff and his family ... to prevent them being exposed'. It was said that the warning had to be such as to 'bring home the gravity of the danger involved in the use of the product so as to allow those who might be affected by the product to modify their behaviour' (plaintiff's closing submissions, section 9.7).

302 The plaintiff also submitted in closing that the defendant was under a duty 'not to dump or, once dumping had begun to immediately stop dumping' (plaintiff's closing submissions, page 142). It was not immediately apparent from the pleadings that the plaintiff's case included an allegation that the defendant should have decided not to dump waste material at Castledare at all. However, as the defendant expressly acknowledged, the issue of whether the defendant ought to have dumped waste material at Castledare was litigated at trial as a separate question from what steps the defendant ought to have taken while disposing of the material or subsequently. The defendant stated in closing that 'based upon the way in which the case was presented at trial, [the defendant] assumes the way (and the only way) in which the plaintiff puts his case is that [the defendant] should never have dumped waste at Castledare at all' (defendant's closing submissions, par 182). It denied the existence of such a duty or if a duty was imposed in more general terms, that it breached the duty by agreeing to Mr Clifton's request and proceeding to dump asbestos cement waste at Castledare.

303 A case that focussed on the defendant's decision to dispose of asbestos waste at Castledare introduced a complication that was not acknowledged by the plaintiff in his closing submissions: the time at which the decision was made will fix the time at which the questions of duty and breach are to be determined. It has been found that the dumping at Castledare commenced some time after June 1968 as a result of Mr Clifton's request to Mr Waters. However, the plaintiff disputed that finding, contending that the disposal of waste at Castledare commenced much earlier.

304 The plaintiff did not expressly identify a time at which the defendant breached its duty for reasons that are shortly to be explained. Implicit in the plaintiff's approach was that the defendant had breached its duty by the time that the plaintiff first visited Castledare. The primary concern in submitting that the defendant commenced dumping asbestos waste at Castledare in the early 1960s appeared to be with establishing that the waste included crocidolite.

305 However, I consider that it is prudent in the remainder of the reasons to make findings on alternative assumptions: first, that the defendant decided to dispose of waste material at Castledare some time between after June 1968 and some time in 1970 (as has been found) and second, that the defendant commenced dumping the asbestos waste from some time in the early 1960s (in case I am wrong in what has been found). I have adopted that approach as I agree with the defendant that the plaintiff's case as presented concentrated on whether the waste ought to have been disposed of at Castledare at all and the finding that the defendant commenced dumping the waste at that site after June 1968 might have significant consequences for the determination of his claim. In particular:

(a) The questions of duty and breach have to be decided at different times to accommodate the plaintiff's case that the defendant should not have dumped the waste material at Castledare at all. Different considerations may apply in determining those questions given that there were significant developments in medical and scientific knowledge concerning the risk of harm from exposure to asbestos during the 1960s. The evidence and findings relevant to the reasonable foreseeability of harm have been split into different time periods for that reason.

(b) It will be necessary to decide the question of causation on different assumptions about the fibre type to which the plaintiff was exposed during his visits to Castledare (the expert evidence that was led accommodated that complication).

306 There was another difficulty arising out of the way in which the plaintiff pleaded duty and breach. Paragraph 7 of the statement of claim pleaded the duty allegedly owed by the defendant as a duty to take six different steps (for example, to dispose of the asbestos waste in a particular way or to not use the waste for a certain purpose). Paragraph 8 pleaded breach by, in effect, alleging the converse of each matter said to comprise the duty (for example, it failed to dispose of the asbestos waste in the pleaded way or it used the waste for a purpose that was contrary to the duty alleged). The effect of that approach was illustrated by the fact that the plaintiff did not separately consider the question of breach in his closing. Submissions were made about the alleged 'content' of the duty (to not dump asbestos waste at Castledare, to warn, to cover the waste material, to not use the material for building paths around the grounds of Castledare, to remediate the site). It was then assumed that the defendant's breach was established by evidence that it had taken or had failed to take a step forming part of the content of the duty as alleged by the time that the plaintiff first visited Castledare.

307 Conceptually, there are difficulties with that approach:

(a) Foreseeability and reasonableness are to be determined separately for duty and breach; a duty of care cannot be defined with such specificity as to effectively assimilate the questions of duty and breach (the content given to the duty cannot both define the duty and provide the answer to the question of breach). That issue is further considered in this section of the reasons.

(b) The approach obscures the requirement of reasonableness at both levels. No reference was made to reasonableness in par 7 of the statement of claim. The reasonableness of imposing a duty of care was assumed to have been established from evidence on the foreseeability of harm and other salient features. Further, the content of the duty was defined without reference to what was reasonable. Finally, reasonableness was avoided entirely at the level of breach.

308 The plaintiff contended that his claim came within a recognised category of cases where judicial decisions had established the existence of a duty of care - the relevant category being the duty of care owed by the manufacturer of a product to a consumer of the product: see, for example, Dovuro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 [29]. In summary, it was submitted that (plaintiff's closing submissions, section 9.5(b)):

(a) the asbestos waste dumped by the defendant constituted a product that was used as 'construction material' for the miniature railway, as covering for roads and paths and as landfill;

(b) the defendant knew that the 'product' was to be used in 'the orphanage's several projects'; and

(c) it was 'easy then to anticipate how people might be harmed from the use of the product' and that 'product use' was 'necessarily wider than use by the purchaser ... or the initial user, but extends to anyone who might foreseeably be harmed by its use'.

309 In my view, the submission that the plaintiff's case came within a recognised category of cases (product liability claims) by which a duty of care owed by the defendant to a class of persons that included the plaintiff was established by prior judicial decisions should be rejected. The submission confused the basis upon which duties of care are recognised.

310 In Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, McHugh J pointed out that, '[t]he common law categorises cases - for the purposes of ascertaining the circumstances in which a defendant owes the plaintiff a duty of care according to the relationship between plaintiff and defendant and not the activity that caused the plaintiff harm' [31] (original emphasis). In this case, there was no relationship created between the plaintiff and the defendant by the defendant 'supplying' asbestos cement waste to the 'users' of that waste at Castledare (assuming for the purpose of the submission that asbestos cement waste was a product and that 'user' in this context could be equated with 'consumer'). The waste material was not supplied to the plaintiff nor did he use the material. The use of the waste material (by the Christian Brothers at Castledare and/or the Catholic Church and/or the Castledare Miniature Railway Inc) and the plaintiff's exposure to harmful asbestos dust and fibre, allegedly as a consequence of that use (that is, as a result of the activity of using asbestos cement waste that had been dumped at Castledare) were separate matters that should not be conflated.

311 As the observations of McHugh J in Vairy make clear, the focus in cases where judicial decisions serve to establish the existence of a duty of care is on the relationship between the plaintiff and defendant and whether it comes within any of the categories of relationships for which the law imposes a duty of care as an incident of the relationship. In all other cases, the primary focus is on the reasonable foreseeability of harm together with the other salient features of the case. To characterise the relationship between the plaintiff (and other visitors to or residents at Castledare) as producer and consumer would be to both misdescribe the relationship in a real sense and to propel the inquiry into duty and breach down the wrong path.

312 There is a further reason for rejecting the plaintiff's submission. The submission rests on the proposition that harm caused by the mere use of a product is sufficient to bring the resulting claim within the established category of product liability cases. The plaintiff cited no authority for that proposition and it was rejected, in the context of claims for injury (mesothelioma) caused by exposure to asbestos, at first instance in Hannell v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2006] WASC 310 and by the Court of Appeal of New South Wales in Seltsam Pty Ltd v McNeill [2006] NSWCA 158; (2006) 4 DDCR 1.

313 In Seltsam v McNeill, the plaintiff contracted mesothelioma following exposure to asbestos dust while working for two to three days with asbestos cement sheets at his sister's house. He was neither the purchaser nor owner of the asbestos cement sheets. Bryson JA (with whom Handley and Tobias JJA agreed) observed that, accordingly, the case was not one where the existence of a duty of care was established by judicial decision: [33].

314 In Hannell, the plaintiff was not the purchaser of the asbestos cement products that were the source of his exposures to respirable asbestos fibres but he became the owner of the products. Le Miere J held that ownership of the products was not a sufficient basis for distinguishing Seltsam v McNeill and so he rejected the plaintiff's contention that a duty of care was established solely by reference to the product liability category of cases: [51]. That finding was not contested in the subsequent appeal.

315 The plaintiff referred to the circumstances of the claim in Hannell in his written submissions in closing. However, he did not argue that either the decision of the Court of Appeal of New South Wales in Seltsam v McNeill or the finding by Le Miere J in Hannell was wrong or that they could be distinguished from the circumstances of this matter.

316 The Court of Appeal of New South Wales has written extensively about the conceptualisation of duty and breach for claims involving injury caused by asbestos exposure: see, for example, Bendix Mintex Pty Ltd v Barnes (1997) 42 NSWLR 307; CSR Ltd v Young (1998) 16 NSWCCR 56; Julia Farr Services Inc v Hayes [2003] NSWCA 37; Seltsam v McNeill; Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 259 ALR 616; and CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338. I was referred to passages from each of those decisions by one or both parties. In addition, passages from the judgments delivered by the High Court in Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540; Vairy; Roads and Traffic Authority v Royal [2008] HCA 19; (2008) 82 ALR 653; and Sydney Water Corporation v Turano were cited. I was, of course, also referred to the decisions of the Court of Appeal in Hannell and Ellis.

317 It is not appropriate to embark in these reasons on a discursive review of the appellate authorities. However, it is necessary to refer to aspects of those decisions to identify the principles that have been applied in this case, especially in the light of the approach that was taken by the plaintiff to the questions of duty and breach.

318 Several propositions can be extracted from the reasons of Steytler P and McLure JA in Hannell and Ellis:

(a) Whether a duty of care was owed and if so, whether it was breached, is to be determined at the time of the alleged breach. Causation is determined by what was known at the time of the trial: Hannell [236], [301]; Ellis [384], [408].

(b) A necessary, although not sufficient, condition for the existence of a duty of care is reasonable foreseeability of the kind of injury that has been suffered by the person to whom the duty is owed: Hannell [299]; Ellis [384], reference being made to Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 [12] (Gleeson CJ).

(c) Reasonableness is the test for the imposition of a duty of care. Reasonable foreseeability is to be understood and applied with due regard to whether it is reasonable to require a person to have in contemplation certain persons or interests and the risk of the injury that eventuated: Hannell [348], again citing Tame.

(d) When assessing reasonableness, hindsight should be avoided. Further, reasonableness must be assessed by reference to all members of the class of which the plaintiff is a member and by reference to all relevant risks, ascertained at the time in question: Ellis [387], citing Vairy [105], [126] [129] (Hayne J); Neindorf v Junkovic [2005] HCA 75; (2005) 222 ALR 631 [93] (Hayne J); Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209 [47] (Buss JA) and Mulligan v Coffs Harbour City Council [2005] HCA 63; (2005) 223 CLR 486 [50] (Hayne J).

(e) The reference to the kind of injury is to different categories of injury - for example, personal injury, property damage and economic loss. The particular injury suffered need not be foreseeable: Hannell [299]; Ellis [384], citing Mount Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383.

(f) A risk is foreseeable if it is real, not farfetched or fanciful; it can be a real risk even if it is extremely unlikely to occur: Hannell [300]; Ellis [385], citing Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 48 (Mason J); Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 [64] and Dovuro [60].

(g) It is an error to formulate the duty of care with such particularity as to, in effect, circumvent the requirement of reasonableness at the breach stage of the analysis: Hannell [350], citing Graham Barclay Oysters [191] [192] (Gummow & Hayne JJ). On the other hand, to formulate a duty at too high a level of abstraction may provide an inadequate legal means by which to determine the issues in a particular case. It will be too abstract if it is divorced from the facts that enliven the duty: Hannell [350], citing Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469 [56], [81] (Gummow & Hayne JJ).

319 Reasonable foreseeability is material to questions of the existence and scope of a duty of care, breach of duty and remoteness of damage: Tame [12] (Gleeson CJ), [96] (McHugh J). It may be difficult in a particular case to separate the factors that are relevant to ascertaining foreseeability at each stage (see the comments of Brennan J in John Pfeiffer Pty Ltd v Canny [1981] HCA 52; (1981) 148 CLR 218, 241 242 that '[f]or the purposes of determining liability in a given case, each element [of the cause of action in negligence] can be defined only in terms of the others'). However, it remains necessary to consider duty separately from breach, recognising that the role of foreseeability in ascertaining whether a duty of care exists is not the same as its role in determining whether there has been a breach of a recognised duty: Tame [12] (Gleeson CJ); and Vairy [28] (McHugh J).

320 Questions of duty and breach are separated by the level of abstraction that is adopted in analysing the facts of the case; whether a duty of care existed involves a higher level of abstraction than the question of whether the duty was breached: Sydney Water Corporation v Turano [45], citing Shirt v Wyong Shire Council [1978] 1 NSWLR 631, 639 (Glass JA).

In my opinion, the factual considerations which I have listed are entirely relevant to the breach question. They are, however, of only limited relevance to the duty question. This is because the existence or nonexistence of a duty owed by the defendant council to the plaintiff falls to be considered upon a higher level of abstraction. The conduct relevant to the breach inquiry is the foreseeability of harm resulting from the acts or omissions of the defendant, or its servants, proved to have occurred. The inquiry to be made in relation to duty or no duty relates to the foreseeability of harm resulting to the plaintiff from the conduct of the defendant, considered quite generally as that of a party about to undertake the excavation of the bed of a lake frequented by the public (639 640).

322 After reproducing that passage, Bryson JA in Seltsam v McNeill said that:

An illustration of the higher level of abstraction at which the existence of duty of care is considered is the wellrecognised possibility that there may be a reasonably foreseeable risk of injury, yet the response of a reasonable person to the foreseen risk may be to do nothing, so that a lack of response does not indicate breach of duty [34].

323 Clearly, the facts relevant to determining whether a reasonable person may decide that it was not necessary to take a step in response to a foreseen risk will be different to the question of whether the risk was reasonably foreseeable.

324 For the purpose of fact finding at trial, separation of the duty question from the question of whether the duty has been breached crystallises around the formulation of the duty of care; '[t]he conceptual distinction between the existence of a duty and its breach is wellunderstood, but will depend in a particular case upon the degree of precision with which the duty is identified': Caltex Refineries (Qld) v Stavar [164] (Basten JA). As Steytler P and McLure JA recognised in Hannell and Ellis, care must be taken to ensure that the duty is not formulated with such particularity as to circumvent the requirement of reasonableness at the breach stage. The more precisely the duty is formulated, the more it will approximate the breach alleged (and the more likely that it is that the questions of duty and breach will have been determined with hindsight). The point was made in the judgment of Gummow and Hayne JJ in Graham Barclay Oysters. Their Honours observed:

An analysis of the competing considerations referred to in Wyong Shire Council is impeded, not assisted, by formulating the relevant duty of care in terms of its breach ...

A duty of care that is formulated retrospectively as an obligation purely to avoid the particular act or omission said to have caused loss, or to avert the particular harm that in fact eventuated, is of its nature likely to obscure the proper inquiry as to breach [191] - [192].

McHugh J made the same point in Graham Barclay Oysters:

The duty of care owed by a manufacturer or producer to a consumer is a duty to take reasonable care to avoid injury to the consumer. To formulate the duty in more specific terms invites error because it is likely to mix a question of law (whether a duty existed) with a question of fact (whether a breach occurred). If the duty is formulated in specific terms, the issue on breach is whether the duty has been performed in accordance with the terms of the duty as formulated. But, as Wyong Shire Council v Shirt shows, the question of breach is far more complex than an affirmative or negative answer to the question whether the defendant carried out the duty as formulated. It involves evaluating and weighing a number of competing considerations. Both the trial judge and the majority judges in the Full Court did not attempt to evaluate and weigh the competing considerations. In failing to do so, they erred in law [106].

See also, the comments of Hayne J in Brodie v Singleton Shire Council [309]. It is for that reason that, in my view, the pleading of the plaintiff's allegations of duty and breach are problematic.

325 Of course, conceptualisation at a 'higher level of abstraction' does not mean that the analysis of whether a duty of care exists is undertaken in isolation from the facts of the particular case. The question is whether a duty was owed to a class of persons that includes a plaintiff who suffered an injury in a particular way. Whether a duty of care was owed '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': Tame [12] (Gleeson CJ) (and as previously noted, cited by Steytler P & McLure JA in Hannell [349] and also by the High Court in Sydney Water Corporation v Turano [45]; see also the reference to Cole v South Tweed Heads Rugby League Football Club in Hannell [350]). Further, as Bryson JA observed in Seltsam v McNeill, '[t]he test of foreseeability is undemanding, but there is no basis for treating it as fictional or nominal, or for equating foreseeability with the limits of the imagination; it must be approached as a test which exists in reality and operates within the limits of the reasonable' [36].

326 Those considerations are reflected in the approach taken by Martin CJ to whether the defendant in Hannell owed a duty of care. That question was to be determined by reference to the foreseeability of harm to someone who used asbestos cement products on a few occasions for handyman purposes with only low, sporadic exposures to asbestos: [236] [238]. The defendant urged a similar approach by reference to what was said by Gummow J in Vairy [70] [73] and Sydney Water Corporation v Turano.

327 It was not necessary in Hannell and Ellis for Steytler P and McLure JA to explore what factor(s), in combination with the reasonable foreseeability of the risk of harm, would be sufficient to establish the existence of a duty of care. They merely noted that in the absence of any generally agreed formula for determining when a duty of care is to be imputed, the High Court appears to have returned to the broad neighbourhood test of Donoghue v Stevenson [1932] AC 562. Balkin and Davis, Law of Torts (3rd ed, 2004) comment that the revival has been 'expressed in different ways but the intent is unmistakable' and that 'what is apparent is that in each case, the emphasis has been placed on whether it is reasonable to impose a duty of care in any given situation, and in assessing this, the court has looked to the totality of the relationship between the parties'. That, it is said, inevitably invites a multifactorial approach: [7.13], 211 212. The multifactorial approach has sometimes been referred to as a search for the 'salient features', a reference to the judgment of Gummow J in Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 [198], [201], [203] and following.

328 In Caltex Refineries (Qld) v Stavar, Allsop P stated that the multifactorial approach recognised 'the use of foreseeability at a higher level of generality and the involvement of normative considerations of judgment and policy': [100]. Care is necessary in understanding the reference to policy, bearing in mind what was said by the High Court in Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562:

The concept of policy, in this context, is often illdefined. There are policies at work in the law which can be identified and applied to novel problems, but the law of tort develops by reference to principles, which must be capable of general application, not discretionary decisionmaking in individual cases [49].

329 Allsop P indicated in Caltex Refineries (Qld) v Stavar that a multifactorial approach required not only an assessment of foreseeability but also attention to such considerations as control, vulnerability, assumption of responsibility and nearness or proximity. At [103] he identified an imposing list of salient features relevant to the question of whether the defendant refinery operator owed a duty of care to the plaintiff who had contracted malignant mesothelioma as a result of being exposed to asbestos dust and fibres while washing her husband's clothes. The list, despite its length, was said to provide a 'nonexhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content' [104].

330 In determining whether a duty of care exists in this matter I propose to have regard to the kind of considerations identified by his Honour as a guide to whether it is reasonable in all of the circumstances to recognise a duty of care owed by the defendant. As Allsop P observed at [106], the use of salient features operates as a control measure on foreseeability so that an analysis of the facts and a consideration of those features will assist in a reasoned evaluation of whether to impute a duty. 'Simple formulae' such as 'proximity' and 'fairness' do not encapsulate the task but they form part of the evaluative judgment to be made by the court. In identifying those matters that are relevant to whether the defendant owed a duty of care to a class of persons of which the plaintiff was a member, it is, nevertheless, important to keep firmly in mind the distinction between duty and breach and the need to avoid the temptation to reason back from the particular circumstances of the plaintiff's claim (and see generally, the observations of Basten JA in Caltex Refineries (Qld) v Stavar [172] [175]).

The relevance of the relationship between asbestos exposure and asbestosrelated diseases to the duty question

331 As previously noted, the variables that define the relationship between exposure to asbestos and asbestosrelated disease dose, fibre type and latency necessarily provide the context within which each of the elements of the plaintiff's cause of action in negligence is to be analysed. In connection with the question of whether the defendant owed a duty of care, the long latency period for mesothelioma means that the existence of a duty (and proof of breach) depends, in part, on an examination of what was reasonably foreseeable at a time many years before the relevant harm was suffered (damage to the mesothelial cells resulting in the formation of a tumour or the symptomatic manifestation of that damage), in circumstances where knowledge about asbestosrelated diseases and their relationship to asbestos exposure has been acquired incrementally. There may be significant differences in the state of knowledge about asbestosrelated diseases and their connection with dose and fibre type depending on the point in time that is relevant for determining the duty and breach questions.

332 The issue of what was reasonably foreseeable may be further complicated by a closer analysis of the basal question: what must be foreseen? Steytler P and McLure JA in Hannell and Ellis accepted that what must be foreseen is the kind of injury suffered by the plaintiff; the 'kind of injury' being a reference to, relevantly, personal injury. An alternative formulation is that the plaintiff must establish that the risk of contracting mesothelioma, in particular, was reasonably foreseeable. That would bring into play the relationship between mesothelioma (rather than the cluster of asbestosrelated diseases) and dose and fibre type and the particular latency period for mesothelioma. So, for example, in Hannell the defendant's case was that at the relevant time it did not know, and had no reasonable grounds for knowing, that a very low dose exposure to asbestos dust and fibres from its asbestos cement products (being a combination of chrysotile and amosite) was capable of causing mesothelioma. Steytler P and McLure JA on appeal noted that the respondent had not challenged the appellant's formulation of the foreseeability question in those terms, suggesting that this may have been because of the nature of the breach relied on by the plaintiff (reference being made to Rosenberg v Percival [60] (Gummow J)): [304]. As has been noted, Martin CJ considered that what was known about the risk of contracting mesothelioma from low, nonoccupational exposures to asbestos fibres was the critical issue in determining foreseeability.

333 The reference in Hannell to the nature of the breach being a possible explanation for how the question of foreseeability was formulated was to the plaintiff's allegation that the defendant ought to have warned consumers through labels and advertising of the hazards associated with use of its products: see [298]. As Gummow J explained in Rosenberg v Percival, cases where it is alleged that the defendant was under a duty to warn about a risk require the relevant risk to be properly identified. The proper identification of the risk will inform the foreseeability inquiry. Put simply, in cases such as Rosenberg v Percival, which concerned the duty of a medical practitioner to warn patients of possible complications from pursuing a particular course of treatment, it is meaningless to analyse foreseeability in terms of 'the kind of injury' defined by reference to the category 'personal injury'. A doctor cannot be sensibly expected to simply warn patients that there is a risk of suffering 'some kind of personal injury' as a complication of a medical procedure. The question is inevitably, 'warn about what?' Deferring that question to the breach stage strips the duty of any meaningful content and invites an unreal analysis of the existence and content of the duty (the question for breach being whether a warning was given and if so, the form and adequacy of the warning). The 'kind of injury' is a legal construct born out of what the law recognises as types of compensable harm. The construct may not be appropriate in every case.

334 Steytler P and McLure JA also noted in Hannell and Ellis, that in Bendix Mintex v Barnes, Beazley JA (with whom Mason P and Stein JA agreed on this question) held that where, at the relevant time, it was known that asbestos as a generic substance was hazardous, it was not necessary for a plaintiff to establish that it was foreseeable that exposure to a particular type of asbestos could cause injury nor was it necessary for the plaintiff to prove that it was foreseeable that he or she could contract the particular injury of mesothelioma. It was sufficient that it was foreseeable that the inhalation of asbestos could cause an injury of the kind suffered - that is, personal injury of some kind (332).

335 The decision of the Court of Appeal of New South Wales in Bendix Mintex v Barnes is consistent with the views expressed by the majority of that court in CSR Ltd v Young. In that case, Giles AJA (with whom Coles AJA agreed) adopted what was said by Fitzgerald P in Bale v Seltsam. In particular, Giles AJA said:

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 he was one was not reasonably foreseeable. Their Honours appeared 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", "farfetched", or "fanciful"'. The decision in that case obviously depended on the evidence before the court, but I would respectfully prefer the approach adopted by Fitzgerald P [118].

336 Reference has already been made to the observations of Bryson JA in Seltsam v McNeill concerning the need to approach foreseeability as 'a test which exists in reality and operates within the limits of the reasonable'. His Honour's comments were a prelude to the following observations:

It is not real, reasonable or just to adopt one broad class of end users to whom risks of exposure to asbestos were foreseeable. Persons whose exposure to asbestos was reasonably foreseeable include many whose exposure occurred in circumstances altogether different from those of the respondent. Workers who handled asbestos in mining, manufacturing or other industrial operations cannot on a reasonable or just basis be included in the same class as the respondent for purposes of deciding foreseeability. Their exposure was to undiluted asbestos and, as reasonably foreseen, extended to exposure for hours in the course of working days, and to continuous exposure over periods of months or years in a working career. Information which is known or ought to have been known to the appellant with respect to risks to them would be misapplied if it were treated as showing or tending to show some risk of injury relevant to the respondent's position.

...

Stepping from actuality into a higher level of abstraction, the person reasonable foreseeability of risk to whom must be considered is and must remain a home handyman who does not encounter the product in an industrial or commercial continuing situation, who works on the product for a few hours only on one handyman project, not as part of what is otherwise his working life. It would be an error ... to bring to bear considerations relating to the foreseeability of risk of injury to classes of persons 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. ... In my opinion it would be a legal error to treat all endusers of a manufacturer of 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 [36] [38].

337 In CSR Ltd v Amaca, Allsop P commented that he did not see any necessary conflict between what was said by Bryson JA in Seltsam v McNeill and Giles AJA in CSR Ltd v Young, 'properly understood in their context and recognising the facts in each case'. The facts in CSR Ltd v Young and Seltsam v McNeill were different; those differences revolved around the intensity and duration of exposure and the nature of the material to which the plaintiff was exposed (in CSR Ltd v Young, blue asbestos tailings had been to used as fill for roads, the airport, golf courses and in backyards at Wittenoom; in Seltsam v McNeill, asbestos cement sheeting had been used as a roof for a room in a house).

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', ie, 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 produce illness in susceptible persons, and the risk inherent in that uncertainty, were sufficient to create a duty of care; ie, 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 (37).

339 His Honour was considering in that passage whether it was reasonable to impose a duty of care having regard to what was known about the limits of medical and scientific knowledge concerning the possible harmful effects of exposure to asbestos. The respondent ought to have known at the relevant time that 'there was a risk that amongst the unidentified and unknown possible toxic effects of asbestos dust was injury or illness to those, such as wives, who were exposed to it by its introduction into their homes and lives by their husbands bringing it with them from their place of employment' (44). The known toxicity of asbestos dust and the knowledge that injury or illness might not emerge for many years meant that the risk could not be dismissed as remote and it was not open to the respondent to assume that low level exposures to asbestos dust experienced by persons such as the appellant in that case (the wife of an asbestos worker) were safe until a link with malignant mesothelioma had been unequivocally established.

340 In CSR Ltd v Young, Giles AJA referred to the reasons of Fitzgerald P in Bale v Seltsam in answer to a submission by the appellant miner of asbestos that at the relevant time (1959 1961) scientific knowledge of the risk of harm from exposure to asbestos dust was confined to the possibility of developing asbestosis and bronchogenic carcinoma, whereas the respondent in that case had contracted mesothelioma. Giles AJA considered that the evidence at trial disclosed that the appellant knew or ought to have known of the risk of residents at Wittenoom contracting an asbestosrelated diseases from the use of mine tailings around the town and that this was sufficient to impose a duty of care. In his view, it was not necessary to show that it was reasonably foreseeable that exposure to asbestos dust could cause mesothelioma. Giles AJA characterised the majority view in Bale v Seltsam as directed to the risk of contracting mesothelioma rather than the risk of personal injury generally. It was in that context that he referred to the judgment of Fitzgerald P and his preference for his Honour's approach over that of the majority.

341 In Seltsam v McNeill, Bryson JA was concerned not so much with the nature of the injury that must be foreseeable but rather with the class of persons to whom it was said that a duty of care was owed. The kind of injury that is foreseeable and the class of persons to whom a duty is owed are closely related but separate questions. In Caltex Refineries (Qld) v Stavar, Allsop P observed that there was no doubt that questions of indeterminacy of class were relevant to the imposition of a duty of care and its scope and content. However, questions of indeterminacy will be 'intimately related to the risk of harm and the reasonable methods of avoidance of risk of that harm' [112].

342 In my view, the discussion in the preceding section indicates that the following approach should be adopted in determining whether the defendant owed a duty of care to a class of persons that included the plaintiff:

(a) Subject to what follows, the principles identified by the majority in Hannell and Ellis and which were summarised at the commencement of the preceding section are to be applied.

(b) It is necessary in 'stepping from actuality into a higher level of abstraction' to determine whether a duty was owed and if so, the content of that duty, by reference to the circumstances of the plaintiff's claim.

(c) Further, a multifactorial analysis is to be adopted to ascertain the existence and scope of a duty of care.

(d) The parameters by which the relationship between exposure to asbestos and the risk of harm are defined are relevant to the existence and content of any duty. Consequently, the form of the waste material is relevant to whether a duty was owed (asbestos cement waste containing amosite and chrysotile on the findings that have been made; and also containing crocidolite on the assumption that I am wrong on the finding that has been made about when the dumping commenced). It would be unreal in this case not to analyse what was reasonably foreseeable by reference to the composition of the asbestos cement waste that was actually deposited at Castledare and what was known about that material. As the parties recognised, a case based on a finding that the dumped material included crocidolite was a somewhat different case to one based on the defendant's admission that the waste contained chrysotile and amosite. Similarly, in my view, evidence concerning the circumstances in which employees may have been exposed to asbestos dust while working in the defendant's factories was of little relevance because of the significant differences recognised in the research literature between occupational and non-occupational exposures to asbestos.

(e) It follows that the circumstances in which there might have been exposure to respirable asbestos fibres as a result of the defendant disposing of waste material at Castledare are also relevant to the question of duty - especially to whether a duty was owed to the plaintiff in particular. The formulation of the duty (if any) and the class of persons to whom the duty was owed intersect at this point. The opportunity for residents at Castledare to be exposed to respirable fibres from the waste material was obviously greater than for visitors. The defendant contended that the relevant class was visitors to Castledare, noting that members of the public visiting the miniature railway could only do so once a month at most. However, it is also to be noted that the evidence of Mr Tavani, Mr Waugh and Mr Clifton suggested that access to the area was not restricted so that members of the miniature railway association and others could visit the site as often as they wished.

343 Four further matters should be mentioned in explaining the approach that has been taken to determining the existence and content of any duty allegedly owed by the defendant.

344 First, an element of relevant knowledge about the risk of harm from exposure to asbestos may be an appreciation of what was not known or was uncertain having regard to what was known. I accept the reasoning of Fitzgerald P in Bale v Seltsam that uncertainty at a particular time about aspects of the relationship between exposure to asbestos and harm may be a significant factor in determining whether a duty of care ought to be imposed. Like Allsop P, I do not regard the approach taken by Fitzgerald P in Bale v Seltsam as being inconsistent with what was said by Bryson JA in Selsam v McNeill. However, the uncertainty must relate in a meaningful way to what was known at the relevant time and the particular circumstances of the case: see, for example, CSR v Amaca [47] [49] (Allsop P) and [147] (Basten JA).

345 Second, the view expressed by Beazley JA in Bendix Mintex v Barnes that it was not necessary for the plaintiff in that case to show that it was foreseeable that he could contract mesothelioma from his exposure to asbestos but rather, it was sufficient that it was foreseeable that the inhalation of asbestos could cause any injury of the kind he suffered is not controversial as a general statement of the law except, perhaps, where the plaintiff contends that the defendant failed to warn of the risks of harm from a particular activity. The plaintiff placed considerable emphasis on a duty to warn in this case. That emphasis reinforced that the question of duty needed to focus more precisely on the composition of what had been dumped and the reasonable foreseeability of the risk of harm from exposure to that material. The foreseeability of harm from exposure to asbestos generally and the defendant's knowledge of that risk are, in my view, relevant to determining whether a duty of care was owed. However, the primary focus should be on the reasonable foreseeability of the risk of contracting mesothelioma from the material that was deposited at Castledare. I consider that remains the correct approach in the circumstances of this case even if the duty to warn element of the plaintiff's case is disregarded.

346 Third, the different relationships between fibre type, dose and asbestosrelated diseases are expressed in the type of harm that might be reasonably foreseeable in the particular circumstances in which exposure occurs. The circumstances in which a person may contract asbestosis are significantly different to those in which mesothelioma might be contracted. In this case, the risk of harm was the risk of contracting mesothelioma from incidental exposures to respirable asbestos fibres released by the defendant's practice of disposing of asbestos cement waste at Castledare. In my view, the questions of duty and breach should be determined in that context. That was the way in which, in substance, those questions were litigated at trial.

347 Fourth, the focus of the inquiry as outlined in the previous paragraph will obviously and necessarily be reflected in the determination of the class of persons to whom any duty might be owed; who the defendant ought reasonably to have had in contemplation when it decided to dispose of asbestos waste at Castledare and while it was engaged in that activity.

Reasonable foreseeability and the defendant's knowledge Pleadings and issues

348 Paragraph 6 of the statement of claim alleged that the defendant knew or ought to have known about a number of matters concerning the relationship between exposure to asbestos and the risk of harm; the nature of asbestosrelated diseases and the dumping of asbestos cement waste at Castledare. The plaintiff relied on those allegations to contend that the risk of harm from the disposal of asbestos cement waste at Castledare was reasonably foreseeable to a person in the position of the defendant.

349 A number of issues arise from the plaintiff's pleading of knowledge and the way in which it was sought to prove the matters alleged:

(a) what was meant by knowledge in the pleaded allegations;

(b) whose knowledge was to be attributed to the defendant;

(c) the basis upon which knowledge was to be imputed to the defendant (imputation is used in this context to refer to what the defendant ought reasonably to have known but did not actually know);

(d) proof of the relevant state of medical and scientific knowledge;

(e) what it was that the defendant actually knew and what it ought reasonably to have known;

(f) the significance of government regulations and voluntary industry codes, including whether the regulations and codes did not, to the knowledge of the defendant, address the risk of contracting mesothelioma from exposure to asbestos or were otherwise inadequate in the light of what was known about the risk of harm from exposure to asbestos.

350 Findings are made in this section of the reasons about the state of the defendant's knowledge during the 1960s and through to 1973 given the plaintiff's submissions about when the dumping of asbestos cement waste commenced at Castledare.

How the plaintiff sought to prove what was reasonably foreseeable

351 In Caltex Refineries (Qld) v Stavar, Allsop P noted that at first instance the President of the Dust Diseases Tribunal had posed the following question for himself:

[W]hether, during the whole of the period, that is from 1964 to 1991, exposure to small quantities of asbestos constituted a foreseeable risk of injury to people in the class of which the plaintiff was a member [27].

The question which the President posed for himself ... masked at least four important factual questions closely related to, and to a degree bound up with, foreseeability and which were also relevant to duty of care. These questions were: (a) the state of knowledge of Ampol (Qld) at any relevant time of the existing body of medical and occupational health and safety ('OH & S') opinion; (b) the degree of appreciation in the medical and OH & S 'communities' of the degree of danger of any particular amount or exposure load of asbestos and of what type of asbestos; (c) the state of knowledge of Ampol (Qld) at any relevant time of the degree of danger referred to in (b); and (d) if Ampol (Qld) did not actually know matters about the risks of asbestos, what was the legal basis, if any, for imputing such knowledge to Ampol (Qld) or for saying that it 'ought' to have known [30].

352 It is to be observed that the President did not entirely assimilate the issue of reasonable foreseeability with the extent of the defendant's actual and imputed knowledge; he considered that the question of knowledge was 'closely related to, and to a degree bound up with, foreseeability'. In this case, the question of reasonable foreseeability essentially involved two elements:

(a) Whether it was foreseeable that members of the class of persons to whom the plaintiff belonged (visitors to Castledare) might be exposed to respirable asbestos fibres as a result of the defendant dumping asbestos cement waste at Castledare - findings have already been made about that issue.

(b) The defendant's knowledge (actual and imputed) of the risk of harm from dumping asbestos waste at Castledare. It is necessary to consider the state of medical and scientific knowledge about the risk of harm from exposure to asbestos as part of the process of determining what, if anything, the defendant ought reasonably to have known.

353 The plaintiff sought to establish the defendant's knowledge of the risk of harm from exposure to asbestos by a combination of:

(a) the evidence of Dr McNulty and what was said to constitute an admission by the defendant made in the letter dated 19 December 1972 from Mr Palfreyman, the defendant's then personnel manager, to the defendant's Western Australian branch manager following Dr McNulty's visit to Castledare (exhibit 162A);

(b) surveys of the relevant medical, scientific and occupational health literature provided by Professor Musk and Dr Leigh;

(c) evidence given by Dr Gardiner (particularly when commenting on the evidence of Dr McNulty) and Professor Berry;

(d) the evidence of Mr Winters and Peter Russell (who was employed by the defendant as a safety engineer and fire officer in the early 1960s);

(e) a substantial number of documents discovered by the defendant that were tendered by the plaintiff and which were said to disclose what it actually knew at the relevant time;

(f) numerous documents that were described as being publicly available and which primarily consisted of medical and scientific publications (some, but not all of which were referred to by the expert witnesses who provided literature surveys).

The defendant's contentions on reasonable foreseeability

354 Proposition 37 of the defendant's closing submissions stated that:

Amaca did not know of any particular risk of injury, and could not have been expected to know of a risk arising out of its activities at Castledare. As at the early 1970s an exposure of the kind likely to be experienced by the class of persons of whom the plaintiff was a member was not recognised to create a risk of injury. In addition, it was thought that asbestos cement was not dangerous.

355 The defendant referred to what was said by the Court of Appeal in Hannell concerning the relevance of the prevailing regulatory regime for determining the risks of harm associated with exposure to asbestos dust that were recognised at any particular time. It then referred to standards published by the NHMRC in November 1969 as indicating what was considered to be an acceptable level of occupational exposure to asbestos fibre. It contended that the possible exposure to an 'occasional visitor' to Castledare could only have been much lower than the standard prescribed in the NHMRC guidelines. It also noted that other guidelines published by the NHMRC drew a distinction between handling raw asbestos and working with asbestos cement products (reference was also made in that context to a report on asbestos cement products prepared in 1990 by the Western Australian Advisory Committee on Hazardous Substances; exhibit 239).

356 Neither party was concerned with all of the issues regarding knowledge that were earlier identified in this part of the reasons. For example, with three exceptions, the defendant made no submission that knowledge of the contents of any of the documents that it had discovered and which were tendered by the plaintiff could not be attributed to it (the exceptions were a memorandum dated 18 December 1967 passing from the Brisbane office of Wunderlich Ltd to the 'finance director' of that company (exhibit 114; see ts 837 838); a memorandum dated 12 July 1974 from Mr Pickford to Dr Smythe (exhibit 74 and see at ts 726 727) and a letter to Dr McNulty dated 19 January 1966 (exhibit 148P) that was said to be relevant to considering the state of Dr McNulty's knowledge when assessing the evidence he gave in exhibits 242 to 245). In many instances, the documents discovered by the defendant and tendered by the plaintiff were created by officers of the defendant. However, that was not always so; for example, one group of documents relied on by the plaintiff comprised the annual reports of the Asbestosis Research Council, an association formed by the asbestos industry in the United Kingdom. There were references to aspects of the Council's annual reports in documents created by officers of the defendant but there was no direct evidence establishing that an officer of the defendant (who could be regarded as the mind of the defendant for this purpose) had read in its entirety each of the reports that were tendered by the plaintiff.

357 There is an obvious difference between information and actual knowledge: 'an extract from a newspaper does not amount to knowledge, it is merely a source from which knowledge can be gained': Commercial Union Assurance Co of Australia Ltd v Beard [1999] NSWCA 422; (1999) 47 NSWLR 735. Further, for the purpose of determining the actual knowledge of a corporation, what is known must be consciously in the mind of an officer, agent or employee who, in the circumstances, constituted the mind of the company. Where the question is whether a corporation knew something from a particular source of information, it is necessary to show that the information was actually 'transferred' to the mind of the officer concerned: Commercial Union Assurance v Beard (752) (Foster AJA); see also The Bell Group v Westpac [6162] [6163].

358 In the absence of any submission to the contrary, I have assumed that the contents of the documents discovered by the defendant as forming part of its records and tendered by the plaintiff on the question of reasonable foreseeability were known by the defendant in the relevant sense. That is, that:

(a) where the document was not created by somebody within the defendant, the entire contents of the document had been read by someone within the defendant who constituted its mind so that the information contained in the document had been transferred to it and formed part of its corporate knowledge;

(b) where the document was created by somebody within the defendant, the information contained in the document formed part of the corporate knowledge of the defendant because, for example, the author of the document had authority in respect of the subject matter of the document or the document was distributed to and read by somebody who possessed that authority.

359 Many of the documents discovered by the defendant and tendered by the plaintiff were created or received by Dr McCullagh. I infer from exhibits 11, 61, 90 and 113 that in about October 1967 Dr McCullagh became an employee of the defendant, holding the position of federal medical officer (it is apparent from the defendant's discovered documents that the term 'federal' was used to designate that part of the defendant's management that had responsibility for its Australia wide operations); that prior to October 1967, Dr McCullagh conducted a private practice in association with Dr Croll; and that for some time prior to October 1967 (at least from October 1963), Dr McCullagh had acted as a medical consultant to the defendant, the consultancy having originally been with Dr Croll but in practice performed for several years prior to October 1967 by Dr McCullagh. The extent and significance of Dr McCullagh's involvement with the defendant prior to October 1967 is illustrated by the use that was apparently made of a document prepared by him in late March 1966 and entitled 'Prevention of Disease due to Asbestos' (exhibit 86). That document is further considered later in these reasons but it appears that the proposals contained in the document were used in discussions with the New South Wales Department of Health and that they formed the basis for establishing a medical health programme for the defendant's employees and for implementing stricter engineering controls over dust contamination in the defendant's factories (see, for example, exhibit 91).

360 The defendant made no submission suggesting that knowledge acquired by Dr McCullagh prior to October 1967 could not be attributed to it. I have proceeded on that basis.

361 In Caltex Refineries (Qld) v Stavar, Allsop P emphasised that it was necessary to identify a legal basis upon which to impute knowledge. However, he did not further identify the legal basis for imputation in the circumstances of that matter; he merely referred briefly to the judgment of Ipp JA in McPherson's Ltd v Eaton [2005] NSWCA 435; (2005) 65 NSWLR 187.

The phrase 'ought to know' is commonplace in our law, particularly in the law relating to negligence; it is often used to impute knowledge to a tortfeasor. Reasonable foreseeability lies at the root of the concept of 'ought to know' and is of particular importance in situations where a preexisting relationship or circumstances that automatically give rise to a duty do not exist [92].

In my opinion, 'ought to know,' means the knowledge that a person, acting reasonably in all the circumstances of the case, should know. There is ample authority to this effect. But there are several matters that need to be noticed when regard is had to 'all the circumstances of the case'.

Firstly, when the imputed knowledge of the defendant (the 'ought to know' issue) is being considered for the purposes of ascertaining whether the defendant owes a duty of care, the 'circumstances of the case' do not include an assumed duty of care; otherwise the reasoning would be circular. Although the word 'ought' is the language of duty, the assumption of a duty of care forms no part of the inquiry at the stage the duty of care is being determined. The imputed knowledge depends on the existence of proved facts that call for the requisite inference to be drawn.

Secondly, a finding that a defendant ought to know of the risk of particular harm may lead to the existence of duties to take reasonable care, to investigate, to do research or to warn. Such a finding, and the existence of such duties, are based to a significant degree, on reasonable foreseeability and depend largely on whether it is reasonably foreseeable that the risk that should be investigated, researched, or warned against might materialise [93] - [95].

363 Ipp JA also noted that in determining reasonable foreseeability, the standard must be that of the reasonable person in the position of, in that case, a retailer which sold millboard containing asbestos to members of the public. Plainly, what a company manufacturing asbestos products at a number of factories located throughout Australia ought reasonably to have known about the risks of harm associated with its activities will be different to the knowledge that should be imputed to the operator of a single retail outlet.

364 As I have indicated, the state of knowledge concerning the relationship between asbestos exposure and asbestosrelated diseases at the time relevant in this case was, and remains, imperfect. Knowledge was acquired incrementally, often through epidemiological studies. There were numerous research papers and epidemiological studies that the plaintiff contended in closing contained information and findings that were known or ought to have been known by the defendant. Further, various documents held or created by the defendant before or around the relevant time referred to or were media reports of several of those studies. Those documents were also relied on to establish the extent of the defendant's knowledge.

365 However, the issue is not just the defendant's knowledge; the issue is ultimately, the reasonable foreseeability of harm and in the context of breach, the reasonableness of any response if it is found that the risk of harm was reasonably foreseeable. Care must be taken to ensure that hindsight is not inadvertently applied to attribute undue weight to a particular study or research article to fix the defendant's knowledge for the purpose of analysing what was reasonably foreseeable when determining the questions of duty and breach. A research paper or an epidemiological study may only suggest a tentative connection between exposure to asbestos and a particular risk. A person may know of the suggestion but reasonably conclude that no step was required to be taken in response, at least until further research better established the connection. That is the issue that concerned Fitzgerald P in Bale v Seltsam.

366 Media reports present a particular difficulty. The report may be inaccurate or lack perspective. It may alert a person to a concern that has been expressed but a range of responses may be reasonable, including discounting the report as being ill-informed or overly sensational.

367 Reasonable foreseeability is to be determined by reference to a person in the position of the defendant. However, the defendant was not a medical researcher and a step may be elided if a conclusion as to what ought to have been reasonably foreseen is drawn directly from a specialist research publication without enquiring as to whether a person in the position of the defendant ought to have known of the publication and if so, what it ought reasonably to have inferred from its contents. The involvement of Dr McCullagh is obviously significant in that regard.

368 The parties did not enter into these complexities in their approach to the evidence that was adduced. However, it is necessary that they are identified as the question of reasonable foreseeability is ultimately a question to be objectively determined by the court on all of the evidence. I have endeavoured to keep the matters referred to in this section of the reasons in mind when making the findings that follow.

369 It is helpful to begin with the evidence that was adduced concerning the state of medical and scientific knowledge up to the mid1970s.

370 Professor Musk's substance of evidence (exhibit 35) contained a summary of the development of knowledge about the harmful effects of exposure to asbestos until the mid1960s. Dr Leigh's primary expert report (exhibit 26) also contained a survey of the medical and scientific literature that referred to studies up to about 1960 and which demonstrated a link between exposure to asbestos dust and asbestosis and lung cancer. The balance of his survey focused on research in the 1960s into the relationship between asbestos and mesothelioma and on occupational health publications concerning that relationship. Professor Musk and Dr Leigh were not crossexamined on their literature survey evidence.

371 It has been found that the defendant commenced dumping asbestos cement waste at Castledare some time after June 1968 and that the waste material contained amosite and chrysotile but not crocidolite. However, I have considered evidence relevant to duty and breach at an earlier time given the plaintiff's allegations concerning when the dumping commenced. There is a tension between those allegations and the evidence on foreseeability that was not squarely addressed by the plaintiff in his closing submissions. As will be seen, a possible connection between asbestos and mesothelioma was only identified in 1959/1960. Medical and scientific research into that relationship and other aspects of the association between exposure to asbestos and disease was actively pursued during the 1960s so that the state of knowledge developed across the decade. In an article published in 1971, Dr Wagner and others noted that 'the past ten years have seen a world-wide interest in asbestosrelated cancers' ('Epidemiology of Asbestos Cancers' (1971) Br Med Bull 71, 72; exhibit 83). Consequently, there may be different answers given to the questions of duty and breach according to the time at which those questions are determined even though the difference between the parties over the relevant period only spans a decade or slightly less.

372 No issue was raised concerning the authority of the studies and other research papers referred to by Professor Musk and Dr Leigh. There was also no challenge to their expertise generally or in relation to their qualifications to give evidence in the form of literature surveys. Accordingly, I accept:

(a) the authority of the studies and other research material to which they have referred;

(b) the authority and accuracy of their statements concerning the content and results of the studies and research material and the acceptance of their studies and material in the relevant medical and scientific communities.

373 The balance of this section is drawn from the evidence provided by Professor Musk in exhibit 35 and Dr Leigh in exhibit 26. It is in a narrative form given the findings that have just been made.

374 The first reference in Professor Musk's survey to the harmful effects of asbestos exposure was in the 1898 Annual Report of the Chief Inspector of Factories and Workshops in the United Kingdom (a copy of the report was at tab 1 in exhibit 191). The report noted that asbestos sifting and carding was one of the several dusty occupations that stood out 'on account of their easily demonstrated danger to the health of the workers and because of ascertained cases of injury to bronchial tubes and lungs'. The Chief Inspector also wrote that the 'evil effects' of asbestos dust had attracted his attention and that 'a microscopic examination of this mineral dust which was made by HM Medical Inspector, clearly revealed the sharp glass like jaggered nature of the particles and where they are allowed to rise and remain suspended in the air of a room, in any quantity, the effects have been found to be injurious, as might have been expected' (page 3).

375 In Australia, an index to health hazards in industry published in 1922 identified asbestos workers as among those who worked in hazardous occupations or occupations with potential health risk. Shortly after, an article appeared in the British Medical Journal noting that it had been 'long suspected' that asbestos exposure caused fibrosis of the lung (asbestosis) and reported for the first time in medical literature on a case of asbestos induced fibrosis (W E Cooke, 'Fibrosis of the Lungs Due to the Inhalation of Asbestos Dust' (1924) British Medical Journal; exhibit 191, tab 2).

376 According to Dr Wagner (1971) (exhibit 83), a relationship between asbestosis and occupational exposure to asbestos in the asbestos textile industry had been demonstrated by the 1930s. Professor Musk referred to a number of articles published in the 1930s that supported that conclusion.

377 A report by Merewether and Price, 'Report on the Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry' (1930 HMSO London) (exhibit 191, tab 3) appears to have been particularly significant in that regard. The report concerned an inquiry initiated by the Factories Department of the Home Office following the discovery of a case of nontubercular fibrosis of the lungs of an asbestos worker. As a result of the inquiry, the report recognised the incidence of pulmonary fibrosis (asbestosis) in workers due to asbestos dust.

378 The report also recognised a direct relationship between the length and intensity of exposure to asbestos dust and the risk of contracting asbestosis: '[f]urthermore, it appears that the risk falls most heavily on those longest employed and those engaged in the more dusty processes' (page 13); '[t]he asbestos fibrosis results from the inhalation of asbestos dust, the proximate cause being concentration of dust in the air breathed and length of exposure to it' (pages 15 16) (and see Dr Leigh's report, exhibit 26, page 12). The report noted that industrial uses of asbestos involved fibrous serpentine or crocidolite, amosite and tremolite. However, no connection was made between the risk of asbestosis and the types of asbestos fibre.

379 It is not possible to meaningfully summarise the surveys by Professor Musk and Dr Leigh of articles and research papers published during the 1930s and 1940s on the effects of exposure to asbestos dust. However, I note the following:

(a) According to a report by the International Labour Office in 1930, American and Canadian life insurance companies generally refused cover for asbestos workers on account of the assumed deleterious conditions in the industry.

(b) In 1933, Merewether reported that exposure to high concentrations of asbestos dust for periods of one or two years could be harmful.

(c) The report of the Director General of Public Health for New South Wales for 1933 (published 1935) noted the first recorded case in Australia of asbestosis in an asbestos worker. An article in the Medical Journal of Australia published in the same year discussed the relationship between asbestos and pneumoconiosis.

(d) A paper published by Dreessen and others (Professor Musk and Dr Leigh do not identify all of the authors), 'A Study of Asbestosis in the Asbestos Textile Industry' (1938) US Public Health Bulletin no 241 demonstrated a relationship between dose (exposure and concentration) and the proportion of subjects with disease. The paper estimated that approximately one in five workers in the asbestos textile industry would suffer from asbestosis and considered that 2.5 mppcf was a safe level of exposure. It further suggested that 5 mppcf was a reasonable threshold concentration for dust containing asbestos and that this should become the standard for occupational exposure (Dr Leigh referred to a weakness in the Dreessen study that 'severely' biased the study towards underestimating 'the dose related risk'; exhibit 26, page 14).

(e) A text published in the United States of America in 1941 on occupational tumours and allied diseases noted that an association between asbestos exposure and carcinoma of the lung had been reported in England, Germany and the United States and suggested that the incidence of lung cancer associated with asbestosis was 'definitely excessive'. Professor Musk also referred to a work published in Germany in 1939 that stated that there was no longer any doubt that lung cancer was the occupational cancer of asbestos workers and to other publications in the late 1940s and early 1950s that noted or studied the possible relationship between asbestos exposure and lung cancer. Dr Leigh stated that the association between asbestos and lung cancer was recognised in the United Kingdom and the United States of America in 1935. He also referred to a further report by Merewether that was published in 1949 and which 'demonstrated clearly the excess lung cancer risk with asbestosis' (exhibit 26, page 15). That work was said to be well known in Australia as a result of a visit by Merewether to Australia in 1950 to attend the third International Conference on Pneumoconiosis.

380 In 1955, Dr Doll published a paper in which he stated that it was considered by a majority of researchers into the effects of exposure to asbestos that a causal relationship between asbestosis and lung cancer was either proved or was highly probable. Dr Wagner (1971) (exhibit 83) referred to Dr Doll's study as having confirmed the risk of lung cancer associated with asbestos, although the paper also suggested that the risk could be eliminated by 'improved conditions in the factory'. Professor Musk stated in respect of that aspect of Dr Doll's paper that 'a dose effect was demonstrated since the risk became progressively less as the duration of employment under the old dusty conditions decreased'. Dr Leigh stated that Dr Doll's paper put the issue of asbestos exposure as a cause of lung cancer beyond doubt. Professor Musk referred to articles and studies published in the early 1960s that confirmed or accepted Dr Doll's finding that exposure to asbestos was associated with an elevated risk of lung cancer.

381 A conference on pneumoconiosis was held in Johannesburg in 1959. The proceedings of the conference were published in the following year but the extract tendered from that publication only identified the conference members (exhibit 191, tab 8). However, according to Professor Musk (and confirmed by other references in the research literature that was tendered) a presentation at the conference by Dr Wagner and Dr Sleggs provided the first substantiated evidence of an association between malignant mesothelioma and exposure to crocidolite. Professor Musk commented, '[asbestos exposure] was considered to be a serious hazard and received worldwide exposure at the conference' (exhibit 35, page 23).

382 I infer from Professor Musk's summary that the presentation by Dr Wagner and Dr Sleggs was similar in content to a paper published in 1960 and which was tendered in evidence: Wagner, Sleggs and Marchand, 'Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province' (1960) British Journal of Industrial Medicine 17, 26 (exhibit 191, tab 9). The paper reported on the case histories of 33 patients in Cape Province, South Africa who had been diagnosed with mesothelioma. Crocidolite was mined in the area. In summary, Dr Wagner and his coresearchers postulated an association between exposure to asbestos and mesothelioma based on the case histories. Further, they noted that:

(a) the first recorded case of carcinoma of the lung associated with asbestos was in 1935 and that Dr Doll had identified 61 cases (including one case of pleural mesothelioma) by the time he had published his paper in 1955;

(b) two cases of diffuse mesothelioma were reported 'from' a Canadian chrysotile mine in 1952;

(c) anecdotal evidence suggested that lung cancers had been recorded in workers exposed to chrysotile;

(d) not all of the cases involved occupational exposure - in particular, some cases involved childhood exposures, the patients having lived in the vicinity of asbestos mines;

(e) their findings suggested that mesothelioma occurred 20 to 40 years or more after exposure to asbestos dust.

383 Professor Musk recorded in his summary of the proceedings of the Johannesburg conference that Dr Sleggs had stated that 'we believe, though we readily admit that the contention has not been proved, that in some way inhaled asbestos is the cause of the mesothelioma which we see in the Northern Cape'. Professor Musk set out the basis upon which Dr Sleggs had stated that he and Dr Wagner had formed that belief. It is not necessary to reproduce that part of Professor Musk's evidence. It is enough to observe that it was apparent from his comments, the evidence given by Dr Leigh and the various medical and scientific publications tendered by the plaintiff that the study undertaken by Drs Wagner and Sleggs and the reasons given by Dr Sleggs were accepted among experts in the field as being sufficient to establish that exposure to, at least, crocidolite was a cause of mesothelioma.

384 At the end of his summary of the proceedings of the Johannesburg conference, Professor Musk stated:

Finding of asbestos bodies in the sputum has shown that everyone in close proximity to mine or mill whether occupied in mining or not, is at risk. Also those engaged in transporting and handling the asbestos even when remote from the mines are exposed to the hazard.

385 Professor Musk also stated in respect of the 1960 paper by Drs Wagner and Sleggs that it was 'the publication which put malignant mesothelioma onto the map as a definite pathological entity and demonstrated its relationship to crocidolite exposure'. They published a further paper in 1961 which Professor Musk described as cementing the crocidolitemesothelioma link. Dr Leigh stated that although there were scattered reports of asbestos related mesotheliomas dating back to the 1930s, it was 'probably reasonable to regard the first definitive association of mesothelioma with asbestos as dating from [Dr Wagner's study]' (exhibit 26, page 16).

386 The 1960 paper published by Drs Wagner and Sleggs contained several case histories that provided some information on the circumstances in which the patients had been exposed to asbestos. It is difficult to assess the extent of exposure from the case histories but it is to be noted that one case (case 4) was said to involve a woman who 'could only have had a short exposure to asbestos as a child and probably a further slight exposure as a young woman' (exhibit 191, tab 9, page 55).

387 Dr McNulty published a paper in 1962 reporting on what he believed to be the first case of pleural mesothelioma reported in an asbestos worker outside South Africa: 'Malignant Pleural Mesothelioma in an Asbestos Worker' (1962) The Medical Journal of Australia 2, 953 954 (exhibit 191, tab 11). After describing the case history, Dr McNulty concluded that:

(a) there appeared to be a relationship between pleural mesothelioma and crocidolite in the case reported;

(b) the relatively short exposure to crocidolite dust in the case confirmed an impression received from Dr Wagner and his coresearchers that mesothelioma may arise from transitory exposure to crocidolite in susceptible persons;

(c) experience in Western Australia 'certainly confirms that blue asbestos is a very harmful and lethal fibre' so that 'the dust is one that urgently requires further experimental study'.

388 The possibility that mesothelioma might be caused by minimal exposure to asbestos appears to have been noted from the earliest stages of research. Dr WJ Smither, in his capacity as Chairman of the Asbestosis Research Council, together with Drs Gilson and Wagner, wrote to the British Medical Journal in November 1962 about mesothelioma and asbestos dust, observing that 'in a number of cases the exposure to asbestos dust appears to have been minimal' (exhibit 191, tab 10). A note in the July 1964 British Medical Journal referred to research into mesothelioma and asbestos, again noting that exposure in some cases had been 'slight' (exhibit 191, tab 16). It was also said that many of the tumours that had been reported were associated with crocidolite but some were related to exposure to chrysotile (the note did not distinguish between the different forms of cancer in recording that observation). Dr Leigh referred in his report (exhibit 26) to other publications in the early 1960s that suggested that mesothelioma could be associated with short or low levels of exposure.

389 Dr Wagner and his co-researchers raised the possibility that those living close to asbestos mines or mills could be at risk of contracting mesothelioma. In a paper published in 1963, Thomson and others reported on a study of lung smears taken during 500 consecutive autopsies: Thomson JG, Kaschula ROC and MacDonald RR, 'Asbestos as a Modern Urban Hazard' S A Tydskrif vir Geneeskunde (19 January 1963) (exhibit 191, tab 14). They hypothesised that the presence of asbestos bodies in 30% of the males examined and 20% of the females was due to urban air contamination caused by the increasing use of asbestos products. They further hypothesised that 'the inhalation of a relatively small number of asbestos fibres over a long period, several years or a lifetime, may result in a focal concentration in the lung bases, in people who have no occupational risk from asbestos' and that this had a cumulative effect that appeared to be of aetiological significance in pleural and peritoneal mesothelioma (pages 77 and 81).

390 Professor Musk's review of the research literature concluded with a summary of the proceedings of a conference on the biological effects of asbestos held in New York in 1964 (the New York Conference). The conference was convened by the New York Academy of Sciences. The papers presented at the conference were subsequently published in December 1965: 'Annals of the New York Academy of Sciences' (1965) 132, 1 (the Annals). Exhibit 191, tab 28 comprised the first 165 pages of the Annals; exhibit 191, tabs 25 27 apparently contained further short extracts from the Annals. The index to the Annals indicated that the publication comprised 766 pages; there was no explanation given for the choice of material extracted for exhibit 191 and none was apparent from a perusal of the contents pages.

391 In his review of the conference proceedings, Professor Musk referred to an 'important epidemiological study of the mortality experience of a group of United States asbestos insulation workers' undertaken in 1962 by Drs Selikoff and Hammond. Professor Musk stated that the study was the subject of a paper delivered at the New York Conference and that it was also published in The Journal of the American Medical Association. He did not further identify the paper but exhibit 191, tab 15 was a journal article by Drs Selikoff, Churg and Hammond, 'Asbestos exposure and neoplasia', that appeared in the The Journal of the American Medical Association in 1964 (188, 22). I infer from Professor Musk's description that this was the paper to which he was referring or that the paper delivered at the New York Conference was similar in content (the index to the Annals indicates that Dr Selikoff authored or coauthored six papers that were presented at the conference, including a paper entitled, 'Neoplasia among insulation workers in the United States with special reference to intraabdominal neoplasia'; a copy of that paper was not in the extract from the Annals at tab 28 of exhibit 191).

392 The epidemiological study undertaken by Dr Selikoff and others was of members of the Asbestos Workers Union in the New York and New Jersey metropolitan areas between 1942 and 1962. The abstract at the commencement of the article appearing in The Journal of the American Medical Association summarised the findings of the study in the following terms:

Building trades insulation workers have relatively light, intermittent, exposure to asbestos. Of 632 insulation workers, who entered the trade before 1943 and were traced through 1962, fortyfive died of cancer of the lung or pleura, whereas only 6.6 such deaths were expected. Three of the pleural tumours were mesotheliomas; there was also one peritoneal mesothelioma. Four mesotheliomas in a total of 255 deaths is an exceedingly high incidence for such a rare tumour. In addition, an unexpectedly large number of men died of cancer of the stomach, colon, or rectum (29 compared with 9.4 expected). Other cancers were not increased; 20.5 were expected, 21 occurred. Twelve men died of asbestosis.

393 In the course of their paper, Dr Selikoff and his colleagues considered and discounted the possibility that the lung cancers identified among those involved in the study were solely attributable to cigarette smoking. They also noted that there were complications in determining the incidence of diffuse pleural mesothelioma but 'the growing number of reports of individual cases suggests that these tumours are perhaps becoming frequent complications of asbestos exposure'. They considered that the results of their study supported that suggestion. They also commented on incidental or 'environmental' exposure, noting the possibility of harm to those who worked with tradespeople who used asbestos products as part of their trade as well as for those who lived with asbestos workers or who had lived in the vicinity of asbestos mines and factories.

394 The paper published in The Journal of the American Medical Association did not distinguish between different types of asbestos. However, a further paper published by Drs Selikoff, Churg and Hammond considered whether any relationship between asbestos and mesothelioma was limited to exposure to crocidolite: Selikoff, Churg and Hammond, 'Relation between exposure to asbestos and mesothelioma' (1965) The New England Journal of Medicine 272, 560. This article was not referred to by Professor Musk in his literature survey but was separately tendered by the plaintiff (exhibit 81).

395 Dr Selikoff and his coresearchers noted that research undertaken by Dr Wagner and others in the NorthWestern Cape Province of South Africa concerned the effects of mining crocidolite, as did the paper published by Dr McNulty in 1962. They further noted that crocidolite was a 'relative newcomer to the American asbestos industry', whereas chrysotile had been widely used for many years. They analysed data from their survey of members of the Asbestos Workers Union and from other sources to test whether the results were consistent with a hypothesis that mesothelioma was another neoplastic hazard of asbestos exposure in general and not limited to one area or one type of fibre (page 561). They concluded from their study that mesothelioma was an important complication of asbestos exposure and that this conclusion (pages 563 564):

[R]efers to such exposure in the United States, under working conditions of the recent past, with relatively light and intermittent asbestos exposure. It indicates, too, that mesothelioma may not necessarily be entirely a problem of only one kind of asbestos (crocidolite) and that it is surely not limited to South Africa.

396 In his review of the New York Conference proceedings, Professor Musk quoted from an overview of the conference delivered by Dr Gilson: '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'. Professor Musk's final comment on the conference was that '[s]uch data as was presented at the conference sparked immediate moves for worldwide government regulation and exposure limits to be reviewed'.

397 Exhibit 191, tab 18 was the report and recommendations from the New York Conference: 'Report and Recommendations of the Working Group on Asbestos and Cancer' (1965) British Journal of Industrial Medicine 22, 165. The report noted that there was evidence of an association between exposure to asbestos and malignant neoplasia. The types of tumours that had been shown to be associated with exposure to asbestos dust were carcinoma of the lung and diffuse mesothelioma of the pleura and peritoneum. There was some suggestion of an association also with gastrointestinal carcinoma and possibly ovarian tumours.

398 The report stated that present evidence indicated that the association with carcinoma of the lung was not limited to exposure to any one type of asbestos fibre. However, further investigation was urgently needed to establish whether the degree of risk was related to the type of fibre inhaled. The report continued (page 166):

In the case of mesotheliomata, evidence from several countries suggests that exposure to crocidolite may be of particular importance, but it cannot be concluded that only this type of fibre is concerned with these tumours, and further investigation of this problem is needed.

Certain types of asbestos fibres in the virgin state have been found to contain oils, waxes, and other organic matter. In addition, asbestos fibres absorb hydrocarbons subsequent to mining. Small or trace amounts of various elements such as nickel and chromium are also found associated with some types of fibre. The possible role of such associated materials in the development of tumours after exposure to asbestos dust is not yet clear.

These findings, when considered in relation to the great increase in the use of asbestos for many purposes in all countries, suggest that a more serious and widespread hazard from exposure to asbestos dust may exist than is widely appreciated.

399 It is possible to extract from Professor Musk's survey four studies/events that are regarded as critical in the development of knowledge about the harmful effects of exposure to asbestos. The significance of those studies was apparent not just from Professor Musk's survey but also from Dr Leigh's survey and the other publications that were tendered (I have had regard in particular in this context to the article by Dr Wagner and others (1971) to which reference has already been made). The studies/events that appear to have been instrumental in demonstrating a relationship between exposure to asbestos and a particular disease were:

(a) The study by Merewether and Price (1930) that established that asbestosis was a major occupational hazard for asbestos workers.

(b) The study by Dr Doll (1955) that confirmed a link between asbestos and lung cancer.

(c) The study by Dr Wagner and his coresearchers (1959/60) that suggested a connection between exposure to crocidolite and mesothelioma.

(d) The New York Conference, including in particular, the study by Dr Selikoff and others in the United States that further established a link between asbestos exposure and mesothelioma.

400 A further study that might be added to this list was conducted by Drs Newhouse and Thompson in London: 'Mesothelioma of pleura and peritoneum following exposure to asbestos in the London area' (1965) British Journal of Industrial Medicine 22, 261 (exhibit 191, tab 24). Professor Musk briefly referred to the study in his literature survey noting that Dr Newhouse reported at the New York Conference that she and Dr Thompson had found cases of mesothelioma among the relatives of asbestos workers. Their study identified a number of patients for whom no evidence of any exposure to asbestos could be found. However, there were problems with history taking and their conclusions were expressed tentatively, except to state that there appeared to be little doubt that the risk of mesothelioma might arise from both occupational and domestic exposures to asbestos. They considered that more evidence was required of an increased risk to the population living in the neighbourhood of asbestos factories or other areas such as dockyards where asbestos was used in quantity (exhibit 191, tab 24, pages 265 266).

401 Dr Leigh stated that the study by Drs Newhouse and Thompson 'drew attention to the risk of mesothelioma from environmental levels of exposure and jobs not scheduled under the 1931 UK regulations' (those regulations are further identified later in these reasons). Dr Leigh noted that the study did not distinguish between fibre type but most of the factory workers studied had been exposed to crocidolite.

Further developments in medical and scientific knowledge from the mid1960s to the mid1970s

402 The medical and scientific publications summarised in the following section of the reasons were generally not considered by Dr Leigh in his literature survey (they were referred to in the plaintiff's closing submissions). Consequently, there might have been questions concerning the authority of the publications. However, there was no objection to the tender of any the publications on the ground that their authority had not been established and no submission was made in closing that any finding or proposal could be dismissed as being irrelevant to the question of reasonable foreseeability on the ground that it lacked scientific acceptance or credibility. Accordingly, I have reviewed the publications on the basis that they expressed respectable views within the medical and scientific community. It is also to be noted that many of the publications considered in this part were relevant to identifying what was unknown about the relationship between exposure to asbestos and disease and what further research was being undertaken or was thought to be required.

403 Another study of reported cases of mesothelioma was published in 1967: Lieben & Pistawaka, 'Mesothelioma and Asbestos Exposure' (1967) Archives Of Environmental Health 14, 559 (exhibit 191, tab 36). Histories of possible exposure to asbestos were obtained. The histories disclosed a similar pattern to that found by Drs Newhouse and Thompson; that is, some patients had worked in the asbestos industry, some had lived or worked close to an asbestos plant and some were family members of asbestos workers. It was concluded that 'the minimal dose effect and relationship and duration of a latent period are unknown'.

404 An editorial appearing in the April 1967 edition of The American Journal of Medicine on asbestosis and neoplasia concluded (exhibit 190, tab 37):

The frequency, nature and extent of disease due to asbestos is a matter for future observation ... The neoplasms now encountered associated both with industry and environment are consequent upon inhalation of asbestos associated with the limited asbestos production of some thirty years ago ...

Yet to be resolved are such important questions as whether different kinds of fibers exert the same biological effects, the nature of the dose-disease relationship, sources and extent of environmental contamination, the range of industrial exposure (inadequately documented at this time), the range of neoplastic effects of asbestos exposure, standardization of roentgenologic and physiologic studies, and even whether asbestos bodies may not sometimes be the result of inhalation of mineral fibers other than asbestos.

405 In 1968, the senior medical inspectors advisory panel to HM Factory Inspectorate in the United Kingdom published a memorandum on the problems arising from the use of asbestos (exhibit 191, tab 40). The memorandum reviewed the development of scientific research into mesothelioma, noting at par 33 the growing evidence of a link between exposure to asbestos, 'apparently of slight degree or remote in time' and mesothelial tumours. However, it was also said at par 37 that it was important that the problem of mesotheliomas in association with asbestos exposure should be kept in proper perspective. There was a risk that the great public interest being taken in mesothelioma would result in the hazard being exaggerated.

406 The memorandum also noted at par 38 that there was a possibility that crocidolite had special significance in the aetiology of mesothelioma. However, the panel agreed with the view expressed by the working group of the International Union Against Cancer following the New York Conference that, while there was evidence to suggest that exposure to crocidolite may be of particular importance, it could not be concluded that crocidolite was the only type of fibre implicated in mesothelioma and that further investigation of the problem was required. The panel did, however, consider that the evidence establishing a relationship between crocidolite and mesothelioma was sufficiently compelling that 'unless special considerations operate, crocidolite should whenever possible be replaced by another variety of asbestos and whatever methods may be adopted to control asbestos dust, these must be even more rigidly applied to crocidolite' (par 40).

407 The committee on hygiene standards of the British Occupational Hygiene Society published hygiene standards for chrysotile asbestos dust in 1968: 'Hygiene Standards for Chrysotile Asbestos Dust' (1968) Ann Occup Hyg 11, 47 (exhibit 191, tab 43). The committee's focus was on asbestosis, with recommendations made for controlling occupational exposure to chrysotile dust according to categories of dust concentration. The committee did note, however, that there was a significant risk of lung cancer associated with asbestosis and that 'a risk of mesothelioma of the pleura and peritoneum exists in connection with the inhalation of crocidolite dust in particular' (page 53). It also noted that there was little doubt that the risk of contracting mesothelioma will be least in the lowest concentration but that the 'quantitative relationship between asbestos and cancer risk is not known, nor is it known exactly why these two are related, nor even whether all kinds of asbestos present a risk. Consequently, it is not possible, at this time, to specify an air concentration which is known will be free of risk in this respect'.

408 In 1969, Drs Selikoff, Hammond and Churg published an update on their study of insulation workers: 'Mortality Experiences of Asbestos Insulation Workers 1943 1968', Pneumoconiosis Proceedings of the International Conference, Johannesburg 1969 (H A Shapiro (ed) 1969) (exhibit 82). They again noted that exposure of insulation workers in the United States of America was not necessarily the same for similar workers in other countries as, among other things, crocidolite had only been used in the insulation industry in the United States in recent times. Prior to that, chrysotile had been used almost exclusively up to the 1930s and amosite had then been introduced. They noted a higher proportion of peritoneal to pleural mesotheliomas than had been observed by Drs Wagner and Sleggs. They suggested that it 'may be that in those people who develop mesothelioma in association with asbestos exposure, the site of the mesothelioma tends to vary to some extent with the intimacy and duration of exposure pleural with less exposure and peritoneal with greater' (page 182). They further stated that the finding of mesotheliomas among insulation workers in circumstances where crocidolite had only recently been used in the industry and the fact that the disease had a long latency period meant that 'crocidolite exposure alone cannot easily explain the mesotheliomas seen'. They concluded that their observations (page 185):

[D]o not disprove a special role for crocidolite elsewhere, in other circumstances. They should, however, engender caution in relying on other asbestos varieties always to be significantly less likely to cause mesothelioma. The relative mesothelioma hazard for each fiber variety is still to be defined in humans. At this time our data suggest that it would be prudent to regard all fiber varieties as potentially hazardous, and to utilize appropriate industrial hygiene measures for all.

409 In 1969, Dr Longley, of the Department of Public Health, New South Wales, published a short article entitled, 'The Many Faces Of Asbestos Disease' (1969) Medical Journal of Australia, 1063 (exhibit 191, tab 46). He stated that mesothelioma could occur 'after only minimal exposure of short duration'. However, he added that, 'fortunately only crocidolite ... has been positively incriminated as a cause'. He noted reports suggesting that mesothelioma could be contracted from breathing city air adjacent to asbestos work but observed that 'practically all asbestos mesotheliomas reported overseas have occurred as a result of exposure to only one variety of asbestos ... crocidolite, and not with amosite or chrysotile'. The use of crocidolite had been virtually eliminated in the New South Wales asbestos industry. Dr Longley's comments were made to 'allay immediately any fears that inhaling the air of the city of Sydney is likely to cause a great epidemic of mesothelioma in the future'.

410 The confidence expressed by Dr Longley might be contrasted with another paper published by Drs Selikoff and Hammond in 1968, 'Community Effects of Nonoccupational Environmental Asbestos Exposure' (exhibit 190, tab 41) in which it was said that more research was required into the effect of exposure to asbestos in the environment.

411 As previously noted, Dr Wagner and others published a further paper in 1971 that reviewed various epidemiological studies that had been undertaken into asbestosrelated cancers. They noted that it was becoming 'increasingly clear that the different types of asbestos are not equally hazardous' and that much of the 'recent work' had been directed to obtaining 'at least approximate relative risks of different exposures to different types of asbestos in different occupations' (page 71). They concluded, among other things, that (page 75):

(a) The risk of lung cancer was more clearly related to the intensity of past exposure and to the risk of asbestosis. When environmental control was good enough to eliminate asbestosis, the excess risk of lung cancer was also small.

(b) Mesothelioma was less certainly dose related. There were many examples where the exposure had been short, though not necessarily slight; information about the intensity of exposure had never been certain. It appeared that mesothelioma of the peritoneum was more frequent than pleural mesothelioma where the exposure was intense.

(c) There was much clearer evidence for the risk of mesothelioma varying according to the type of asbestos than there was in the case of bronchial tumours. Exposure to chrysotile alone was probably a rare cause. In the majority of cases, exposure had been to crocidolite and/or amosite with or without chrysotile. Present opinion rated the risk from exposure to crocidolite higher than that from amosite.

(d) Not all mesotheliomas of the pleura could be related to exposure to asbestos. That suggested that other factors were involved and that made the interpretation of the relationship between low level asbestos exposure and mesothelioma difficult.

(e) The epidemiological evidence was insufficiently precise, largely because of unknown historical factors, to be able to express quantitatively the relative cancer risk associated with different types of fibre. The trend of more recent research was 'towards increasing the estimate of the difference in risk between exposure to chrysotile alone and to crocidolite'. It appeared that the use of chrysotile 'may carry only a very small risk when the dust control is at a level which is now practicable and economic'. Consequently, 'crocidolite is probably the one which should be eliminated wherever possible. The position of amosite is probably intermediate, but until its position is better defined dust control should be at a high standard'.

412 Dr Leigh described the paper by Dr Wagner and others as an authoritative review. He noted that although the review recognised possible differential effects according to fibre type, it did not claim that chrysotile could not cause mesothelioma. He also noted that the 1965 report of the working group of the International Union Against Cancer was to similar effect (exhibit 26, page 17). Dr Leigh further stated that (exhibit 26, page 19):

Certainly, by 1970, the dangers of asbestos in causing mesothelioma were well known in Australia (Milne Med J Aust (Oct 4) 669 - 673 (1969); Longley Med J Aust 2 1063 - 1066, 1969, Mortimer and Campbell Med J Aust (Oct 26) 720 - 722 (1968) BOHS Ann Occ Hyg 11:47 - 69, 1968, Selikoff et al JAMA 188:22 - 26, 1964). Since 1968 all types of asbestos were generally thought to cause mesothelioma, with (from about 1965) a theory commonly held by the majority of crocidolite being the most potent, followed by amosite and then chrysotile. However there was a fairly strong minority that felt 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 IARC Evaluation (vol 14 1976 p 80).

413 Dr Leigh was not crossexamined on that evidence. The paper by Dr Milne to which Dr Leigh referred was also tendered in evidence (exhibit 191, tab 47). It comprised a report on 15 cases of pleural mesothelioma that had been diagnosed in Victoria. Dr Milne concluded that those cases demonstrated the relationship between mesothelioma and asbestos. He further noted that the type of asbestos may be important but added (page 672):

It is generally agreed that of the three common types of asbestos, namely, amosite, chrysotile and crocidolite, the last named ... is the most potent in mesothelioma production (Wagner 1965). Other types of asbestos may possibly be incapable of inducing mesothelioma growths.

414 A report by an advisory committee to the International Agency for Research on Cancer published in 1972 (exhibit 191, tab 55) stated that:

(a) All major commercial types of asbestos were capable of causing lung cancer. However, there were clear differences in risk with fibre type and the nature of exposure. Further, 'excess' lung carcinoma was not detectable when the occupational exposure had been low; 'these low occupational exposures have almost certainly been much greater than that to the public from general air pollution'.

(b) The evidence for a relationship between exposure to asbestos and mesothelioma had been greatly strengthened by research since 1964. Further, there was evidence that all commercial types of asbestos except anthophyllite might be responsible. The risk was greatest with crocidolite, followed by amosite and then chrysotile.

(c) There was evidence of an association of mesothelial tumours with air pollution in the neighbourhood of crocidolite mines and of factories using mixtures of asbestos fibre types. There was otherwise no evidence of an excess risk of mesothelioma from asbestos air pollution and no evidence of a risk to the general public at present.

415 The members of the advisory committee recommended further research into the relationship between exposure to different fibre types and mesothelioma and also into the role of low and intermittent exposures in causing the disease.

416 The work and recommendations of the International Agency for Research in Cancer were noted by The Medical Journal of Australia in January 1973 (exhibit 191, tab 53). A passage from a statement issued by the Agency was reproduced in which it was stated that 'the population at large does not appear to be at risk'. However, reference was made to cases of cancer among populations living downwind from asbestos processing factories and among family members of asbestos workers and that it was necessary to be 'extremely prudent' in interpreting 'current levels of risk' because of the long latency period. Reference was also made to the possibility that workers handling asbestos outside the asbestos industry might also be at risk.

417 Finally, in 1974 a short article written by Dr Smither of the Asbestosis Research Council referred to the studies by Drs Wagner and Sleggs and Drs Newhouse and Thompson and noted that the exposures 'may have been considerable'. The article then recounted the case of a patient suffering from peritoneal mesothelioma that had been recently interviewed and recalled 'playing with handfuls of asbestos on waste ground near a factory as a small boy some forty years before he developed a tumour' ('Asbestos in the Workplace and the Community' (1974) Environmental Health Perspectives, 9, 327; exhibit 191, tab 56).

418 Professor Berry was cross-examined on both the paper published by Dr Selikoff and his colleagues in 1965 (exhibit 81) and their subsequent paper delivered at the Johannesburg conference in 1969 (exhibit 82). As previously noted, the paper published in 1965 (and the paper published as part of the Annals) did not expressly identify the fibre type to which the workers who were studied had been exposed. Among the publications that were tendered, it only clearly emerged in the paper delivered in 1969 that the workers studied had been exposed predominately to chrysotile and some amosite. Consistent with that chronology, Professor Berry was asked, '... there was no doubt in 1971 that amosite was a cause of mesothelioma ...'; he replied, 'no, because ... the work of Selikoff established that' (ts 772). He also accepted that it had been established by 1971 that all types of asbestos could cause mesothelioma 'when you say there's no doubt, I think in 1971 some people would have had doubt, but I accept that that was the case' (ts 771).

Conclusions on medical and scientific knowledge by the mid1970s

419 The following findings are made from the evidence that has been summarised about the state of medical and scientific knowledge by the mid1970s concerning the relationship between exposure to asbestos dust and fibre and asbestos-related diseases:

(a) It had been established long before 1960 that occupational exposure to asbestos dust was harmful; that is, that physical proximity to asbestos dust could be harmful and that there was a relationship between exposure (dose) and harm. It had been recognised from the turn of the 20th century that the form of asbestos fibres (the 'sharp glass like jaggered nature of the particles') made them dangerous when inhaled. The concern was with diseases of the lung, particularly asbestosis and lung cancer and therefore, with the harmful effects of inhaling asbestos dust and fibre. The relationship between exposure to asbestos dust and asbestosis/lung cancer was not limited to certain types of asbestos in particular, it was accepted that exposure to chrysotile could cause asbestosis and lung cancer.

(b) A relationship between exposure to crocidolite and mesothelioma was suggested by Dr Wagner and Dr Sleggs in 1959. However, the reference to crocidolite in that relationship was a reflection of the geographic area in which their study was undertaken. It was not suggested that other types of asbestos were not implicated in causing mesothelioma; indeed, they noted that two cases of diffuse mesothelioma had been reported from a chrysotile mine in Canada. Significantly, some patients they studied had not worked in the local crocidolite mines.

(c) The medical and scientific community accepted that the study of Dr Wagner and Dr Sleggs established a relationship between exposure to crocidolite and mesothelioma. The letter to the British Medical Journal from Dr Smither in 1962 indicated that the findings of the study were also quickly accepted by senior members of the asbestos industry in the United Kingdom. Dr McNulty's paper on a case of mesothelioma in an asbestos worker at Wittenoom was an early confirmation of the findings by Drs Wagner and Sleggs. The relationship was further confirmed by the study undertaken by Drs Selikoff, Churg and Hammond. It was accepted as having been established at the New York Conference.

(d) A significant aspect of the findings made by Dr Wagner and Dr Sleggs that was that mesothelioma might be associated with 'short' exposures to asbestos. It was subsequently accepted by at least the time of New York Conference that mesothelioma was associated with 'minimal' or 'low' or 'slight' exposures to asbestos.

(e) It was also suggested by Dr Wagner and Dr Sleggs and subsequently confirmed by other studies in the early and mid1960s that mesothelioma could be contracted from non-occupational exposures. A relationship between nonoccupational exposure and mesothelioma was further indicated by the study of Dr Newhouse and Dr Thompson published in 1965.

(f) The possibility that asbestos fibres were present in urban environments in sufficient quantities to cause mesothelioma had been suggested by 1965.

(g) Although there were suggestions in the late 1960s that only exposure to crocidolite fibres was potentially harmful:

(i) There was no clear evidence by June 1968 (when Mr Clifton commenced working for the defendant) that other types of asbestos were not implicated (Dr Selikoff and his colleagues warned against such a conclusion, as did the working group on asbestos and cancer established at the New York Conference and the senior medical inspectors panel that reported to HM Factory Inspectorate in 1968). Notes made by Dr McCullagh from the Annals indicated that some research presented at the New York Conference suggested that there was a variable relationship between fibre type and the risk of contracting mesothelioma of the kind that is now accepted (and Dr Leigh stated in his report (exhibit 26) that the variable potency between fibre types was a commonly held theory from about 1965 (page 19)). However, Dr McCullagh's notes also recognised that the suggestion was tentatively made and the relationship between fibre type and the risk of harm was uncertain (Dr McCullagh's notes are further considered in the next section of the reasons). The editorial appearing in the April 1967 edition of The American Journal of Medicine highlighted the many questions that remained to be resolved about the relationship between asbestos and cancer, including whether all fibre types had the same biological effects.

(ii) There was evidence by 1971 suggesting that the risk of contracting mesothelioma was greatest where exposure was to crocidolite, followed by amosite and then chrysotile. There were also indications referred to in Wagner (1971) that there might be different rate of pleural and peritoneal mesothelioma according to the degree of exposure and that the intensity of exposure could be an important factor.

(iii) The studies by Drs Selikoff, Churg and Hammond indicated that amosite could be implicated in the causes of mesothelioma. Professor Berry, who was involved in research in the area from the late 1960s onwards, accepted that the study established a relationship between exposure to amosite and mesothelioma. I accept that his evidence also established that a number of other researchers agreed that the study had demonstrated the relationship the 1971 paper by Dr Wagner and others indicated that this was so.

(iv) Dr Selikoff warned in 1969 that it was not possible to conclude that exposure to some types of asbestos could not cause mesothelioma and that it was prudent to regard all fibre varieties as potentially hazardous. Dr Wagner and his colleagues concluded in 1971 that epidemiological studies suggested that cases of mesothelioma associated with exposure to chrysotile were rare. However, their comments were qualified by the reference to dust controls (and see also the comments of Dr Leigh that were reproduced earlier in the reasons).

(v) There was no evidence that there was new research or studies undertaken between 1971 and 1974 that would affect the views expressed by Drs Selikoff and Wagner (indeed, the defendant's submissions on causation accept that there is no clear consensus today on whether chrysotile exposure may cause or contribute to mesothelioma).

(vi) Accordingly, during the period from about 1965 to 1974, there was a respectable body of medical and scientific opinion that exposure to amosite and chrysotile fibres could cause mesothelioma; that exposure to amosite was likely to be more harmful than exposure to chrysotile; that cases of mesothelioma caused by exposure to chrysotile alone were rare but that the precise relationship between fibre type and dose to mesothelioma was unknown and required further research.

(h) There was no evidence that there was a minimum safe level of exposure to any type of asbestos fibre. At most, Dr Wagner suggested in 1971 that the risk of exposure to chrysotile might only be 'very small' in an occupational setting where dust control measures ensured that dust levels were below prescribed amounts.

420 I also find on all of the relevant evidence that was tendered that by 1974 much of the detail of the relationship between exposure to asbestos and mesothelioma was not known by or agreed between medical and scientific researchers in the field and that it was understood that it was necessary for there to be further research into, and circumspection in expressing conclusions about, the relationship.

421 A number of the documents discovered by the defendant and tendered by the plaintiff on the question of the defendant's knowledge of the risks associated with exposure to asbestos were created by or circulated to Dr McCullagh. Other officers and employees of the defendant who were frequently mentioned in the documents included FA Page (who was described as being a director of the defendant); ET Pysden (who, according to the documents, was the defendant's personnel manager); RD Palfreyman (who replaced Mr Pysden as personnel manager and who was at some time prior to early 1968 located in Perth see exhibit 115); NE Gilbert (who was at one time, the factory manager for the defendant's Camellia factory and who later became the defendant's research and development manager); and SE Cohen (who, according to Mr Russell, was the 'Company Engineer' in the mid1960s; ts 144). It has already been found that the information contained in the documents discovered by the defendant as part of its records formed a component of its corporate knowledge. That finding is reinforced by the fact that Dr McCullagh, Mr Page, Mr Pysden, Mr Palfreyman, Mr Gilbert and Mr Cohen were obviously senior members of the defendant's management. I infer that the documents that they created or received and which were tendered by the plaintiff concerned matters that were related to their areas of responsibility within the defendant. I draw that inference from their position within the defendant and from the subject matter and content of the documents. There was no issue raised by the defendant concerning aggregation of the knowledge of any of its former managers.

422 Not surprisingly, none of the officers and employees to whom I have just referred gave evidence. That meant that there were inevitably passages in the various documents that were tendered that were difficult to interpret or perhaps more accurately, to put in their proper context so as to determine what weight might be accorded to any particular statement. Further, the findings that have been made about the defendant's knowledge at any relevant point in time are necessarily inferences drawn from the knowledge that had been accumulated within the defendant up to that point. Consequently, I have set out in some detail the content of the documents that I regarded as being most important to the findings that have been made so as to fully expose the reasoning. That approach also reflects the need to make findings at different points in time.

423 It has been found that it was wellestablished by 1960 that prolonged occupational exposure to asbestos dust could cause fibrosis of the lungs (asbestosis). An interhouse letter from the defendant's then personnel officer to 'City Office', dated 21 February 1962, reflected that understanding (exhibit 47 and see also, exhibit 54). It summarised various surveys of the defendant's employees undertaken by the New South Wales Department of Health between 1952 and 1961. The surveys had identified 20 employees who 'may have a recognisable degree of asbestosis'. Three of those employees had died.

424 Exhibits 11 15, 48, 50 and 51 comprised notes of discussions held in 1963 and 1964 between Dr McCullagh, Mr Russell and others about dust control. The notes indicated that a system of dust sampling at different points in the defendant's main factory, Camellia (Sydney), had been implemented by 1963 and the need to limit the duration of exposure of employees working in areas with high dust levels had been recognised. The plaintiff suggested that the discussions disclosed that there were areas in the factory where dust levels could not be controlled, that the defendant's employment practices reflected that fact and that attempts were being made to develop exposure indicators. There were also references in the notes to Dr McCullagh investigating the possibility that susceptibility to dust diseases might vary between workers (exhibits 11 15).

425 These and other documents tendered by the plaintiff concerned issues about dust within the defendant's factories. It was said that those documents demonstrated, among other things, that the defendant was indifferent to dust control. It was not, in my view, possible to make a finding expressed at such a level of generality from the way the evidence was presented. A finding about the defendant's attitude to dust control in the 1960s and the early 1970s could only be made following a much wider enquiry that would necessarily include evidence about matters such as industry standards and practices at that time. Further, the question of whether the defendant adopted or failed to implement appropriate dust control measures within its factories was, at best, at the very periphery of relevance to the issues to be decided.

426 Similarly, the plaintiff made submissions that were critical of the defendant about matters such as an alleged failure to communicate to the public what it knew about the risk of harm from exposure to asbestos dust and a supposed lack of concern for public health. In my view, the pejorative aspects of the plaintiff's submissions on the defendant's alleged attitude towards occupational and public hygiene were irrelevant.

427 A memorandum dated 16 April 1964 from Mr McDonald to Mr Pysden (exhibit 54) indicated that dust counts commenced being taken in 1960 when Mr Russell was appointed safety officer. That memorandum and the documents that were exhibits 86 89 and 91 (which were dated March and April 1966) indicated that the defendant was well aware of the need to control exposure to asbestos dust in its factories and also of the difficulties in accurately monitoring dust levels (see in particular, exhibit 87). Reference has already been made to exhibit 86, a memorandum dated March 1966 from Dr McCullagh containing proposals for 'prevention of disease due to asbestos'. It was not clear whether the detail of Dr McCullagh's proposals was adopted by the defendant, although the evidence disclosed that a medical programme was established to monitor the health of employees. It is also to be noted that Dr McCullagh proposed that engineering controls within the defendant's factories should aim to ensure that noone was exposed to a level above 5 mppcf and that 'once this is achieved the aim be reviewed'.

428 The defendant's discovered documents included material received from the Asbestosis Research Council that had been established in Great Britain in 1957 (see exhibit 45). It was not entirely clear when the defendant commenced receiving material from the Council but a letter dated 2 February 1965 from Associate Professor Gandevia to Mr Pysden referred to the defendant having provided research material sourced from the Council (exhibit 55). I infer that the defendant received the documents distributed by the Council, tendered by the plaintiff and apparently created in the early 1960s (exhibits 45 46, 52) in that period; it is not necessary to be more precise. The defendant became an associate member of the Council in about July 1967 (exhibits 104, 107, 108 and 111).

429 The material generated by the Council in the early 1960s disclosed that it was sponsoring research into the pathology of asbestosrelated diseases. Exhibit 46 was a summary of research into asbestosis between 1957 and 1961 produced by JF Knox (who, I infer, was the Dr Knox shown in the Asbestosis Research Council's annual reports, exhibits 45 and 52, as the executive member of its research committee). The summary noted the uncertainties surrounding the relationship between the level and duration of exposure to asbestos and the development of asbestosis. It also noted that the medical research being undertaken involved experiments with animals. According to the Council's annual report for the year beginning October 1963, those experiments established that for animals, various asbestos fibres chrysotile, amosite, crocidolite and anthophyllite had similar effects on the lungs and it had not been possible to establish that one type of fibre was more pathogenic than other types (exhibit 52, appendix 2).

430 Exhibits 56, 58 61 and 86 89 were variously dated between February 1965 and April 1966 and were internal memoranda passing between senior managers of the defendant (that is to be inferred from the identity and description of the author and the circulation lists recorded in the documents) or notes made by Dr McCullagh concerning asbestos related diseases. In summary, those exhibits and other documents created at around this time disclosed that:

(a) As previously mentioned, Dr Gandevia, who was described as an associate professor in thoracic medicine at The Prince Henry Hospital, was in communication with Mr Pysden in early 1965. His letter to Mr Pysden dated 2 February 1965 (exhibit 55) indicated that he had traced two cases of mesothelioma in New South Wales and 'at least one fatal instance was associated with asbestos exposure'. Dr Gandevia also stated that 'recent work published or in the course of publication leaves no doubt of this association, and the exposure can be quite small and quite remote in time; the latter factor explains why it is being recognised with increasing frequency only recently'.

(b) The defendant was aware of the New York Conference (exhibits 56, 60, 61 and 87). Dr McCullagh made detailed notes on the Annals of the conference in March 1966 (exhibit 61).

(c) In May 1965, Mr Page distributed a newspaper article to various managers within the defendant. The accompanying memorandum described the article as typifying current medical opinion (exhibit 56). The article commenced by stating 'anyone who experiences a single, heavy exposure to asbestos dust could conceivably develop lung cancer 20 years later'. That statement was attributed to two unnamed physicians who had provided a report to the American Public Health Association. The article then referred to a 'great deal of research' currently being conducted into the biological effects of asbestos; to the mechanism by which it was thought that asbestos fibres caused asbestosis; to the study by Dr Doll suggesting a link between exposure to asbestos and lung cancer and to the discovery that inhaled asbestos particles can 'sometimes cause another and rare form of cancer called mesothelioma'. The article continued:

Recently it was found that asbestos workers and people living on the mineral's mine fields had a very high rate of this otherwise rare tumour.

Asbestosis, and the resulting bronchial carcinoma, follow prolonged exposure. It also appears possible that one particle acting on one cell may start a mesothelioma.

On the other hand, considering the scale on which asbestos is produced and handled, very few people indeed have been killed or made very sick.

Nevertheless, asbestos must now be added to the list of substances and circumstances capable of causing cancer.

The accompanying memorandum from Mr Page stated that apart from 'any legal requirement the Company accepts the moral obligation of ensuring the health of its operations and staff is adequately safeguarded. To this end, the quest for better dust control and working conditions will continue'.

(d) In February 1966, Mr Pysden advised the defendant's then managing director, JB Reid, about another newspaper article (exhibit 58) that referred to diseases of the lung, including mesothelioma, that were thought to be connected to asbestos exposure. The article reported on the study by Drs Newhouse and Thompson. Much of the article focussed on the risk of members of an asbestos worker's family or those living near asbestos factories contracting mesothelioma. The article quoted from a doctor who was described as an expert on industrial diseases of the lung and who stated that there was an 'enormous amount of experimental work on the biological effects of asbestos going on quietly at the Medical Research Council's pneumoconiosis unit at Cardiff, where Dr Wagner now works'. It was said that some of the current studies were designed to ascertain which type of asbestos was the most noxious and the minimum dose required to produce malignant changes. Further, the Medical Research Council's work was 'only one aspect of the vast international effort', reference being made to a study to be undertaken by the International Union Against Cancer. The article concluded by referring to research indicating that between 20% and 30% of urban dwellers had asbestos bodies in their lungs (that was obviously a reference to the study by Thomson and others (1962); exhibit 191, tab 14).

(e) The accompanying advice from Mr Pysden (exhibit 59) was contained in a memorandum headed 'Asbestosis'. The memorandum stated that, 'four types of asbestos chrysotile, amosite, crocidolite and anthrophylite have similar effects on the body and it has not been possible to establish that one is more pathogenic than the others' (that advice appears to have reproduced the observations made by the Asbestosis Research Council in its annual report for the year beginning October 1963). The memorandum also stated that the only preventative action was to eliminate the presence of dust and that some people appeared to be affected more readily than others. Those statements were apparently directed primarily to asbestosis; the memorandum referred to mesothelioma but, as its title suggested, it was primarily concerned with the risk of contracting asbestosis from exposure to asbestos.

(f) Dr McCullagh's notes and comments on the papers comprising the Annals of the New York Conference recorded in summary form a considerable amount of information prefaced by the observation that no consensus emerged from the papers that had been delivered (exhibit 61). The points that he noted included that:

(i) Chrysotile accounted for 93% of the world's production of asbestos.

(ii) The accepted safe upper limit of exposure in the United States of America was 5 mppcf, while in Britain the level was lower at 4 f/ml. However, it was said in both the United States and the United Kingdom that there was no safe upper limit and that all and any fibre was dangerous.

(iii) The mechanism by which exposure to asbestos caused asbestosis was not well understood. It was possible that asbestosis was a 'macrophangetodust response disease'. Chrysotile was the fibre that was most readily eliminated from the lungs followed by crocidolite and then, amosite 'a fact that appears to have relevance to the discussion of relevant disease and cancer that follow'.

(iv) The latency period for all asbestosrelated diseases was such that a policy of employing older men should be adopted.

(v) 'I think it fair to say that asbestos fibre is generally held to be associated with and probably the cause of two forms of cancer, bronchogenic carcinoma (cancer of the bronchi) and mesothelioma (cancer of the pleura or, less commonly, of the peritoneum in the abdomen)'. However, an argument was noted that bronchogenic carcinoma was a consequence of pulmonary asbestosis and not of the asbestos fibre itself, together with differences in the chemical composition of crocidolite and amosite on the one hand (presumably as amphiboles) and chrysotile on the other hand.

(vi) It had been suggested that even a brief and slight exposure to asbestos might result in mesothelioma. However, it had also been suggested that there was no connection between asbestos exposure and bronchial or pleural cancer and that the association apparently indicated by studies on asbestos workers reflected intense necropsy and post mortem interest in the lung condition of asbestosis sufferers. Comparisons with the general population were, therefore, invalid.

(vii) There were conflicting views and evidence about the relevance of fibre type: 'amosite and crocidolite are held to be the most dangerous, it is doubtful if chrysotile acts as a human carcinogen, there is little information on tremolite and anthrophyllite'. However, Dr McCullagh also noted experiments with animals that suggested that chrysotile exposure might more readily cause cancer in smokers and that all forms of asbestos might be implicated in mesothelioma.

(viii) It was suggested that the increasing use of asbestos products 'with their slow disintegration and the release of 'indestructable' asbestos fibres' was leading to a dangerous pollution of the urban environment. However, it was noted that the suggestion had not been met with general acceptance, the indestructibility of asbestos fibres being denied.

(g) By a memorandum dated 6 April 1966 to 'City office', Mr Gilbert reported on a visit to the defendant's Camellia factory by the director of the division of occupational health for the Department of Health (exhibit 88; and see exhibit 87, which was a 'record of proceedings' concerning the visit). Mr Pysden, Mr Cohen and Dr McCullagh were among the representatives of the defendant present. According to the memorandum, the director stated that he believed that the 'accumulating mass of evidence in regard to asbestosis and lung cancer by a relatively short exposure to asbestos is such that much more stringent regulations applying to dust control within the factories handling asbestos will have to be formulated ... [h]e believes that these new regulations should go as far as requiring zero asbestos dust within the factory as has been laid down in some other countries'. The director was also recorded as stating that he was concerned about the hazard from asbestos dust that could exist to families living within three miles of the factory. He believed that overseas evidence had in some cases shown that a hardening of the chest lining had been caused by very mild exposures to asbestos dust.

(h) The 'record of proceedings' of the visit (exhibit 87) recorded that there was a discussion between the director and those present about research into asbestos-related diseases, including lung cancer and mesothelioma. Reference was made to the New York Conference and to the study by Dr Selikoff and his colleagues.

(i) There was a reply to the record of proceedings from Mr Page addressed to Mr Gilbert (exhibit 89). Mr Page advised that the control of dust in the 'Camellia area' had to be regarded as urgent and important; it was not possible nor was it desirable to try and define a safe concentration as all dust had to be regarded as harmful; and his impression, 'completely unbacked by any evidence', was that 'crocidolite and amosite were more troublesome that chrysotile'.

431 Mr Russell was employed by the defendant between 1948 and 1970. He stated that between about 1959 and 1961 he was the factory superintendent at the insulation factory forming part of the Camellia plant. He became aware of the hazards of asbestos during the time that he worked at that factory (exhibit 16, pars 18 24).

432 Mr Russell was appointed safety engineer and fire officer at Camellia in 1961. He undertook research at the Mitchell Library, Sydney into the relationship between asbestos dust and disease during the time that he was the safety engineer and fire officer. As a result of that research, he learnt of the association between asbestos exposure and asbestosis (exhibit 16, par 66 71). He stated at par 72 of the witness statement that, 'the literature also spelt out that exposure had a tendency toward cancer. The literature was also starting to mention mesothelioma'. However, he did not identify the time when he first sighted literature referring to the possibility that lung cancer and mesothelioma was associated with exposure to asbestos dust. Although an opportunity was given to supplement Mr Russell's witness statement with oral evidence, the time to which this part of his evidence referred was not clarified other than that he thought that he had seen articles in medical journals referring to mesothelioma by some time prior to May 1964 (ts 162).

433 Mr Russell also stated that he obtained at some stage a copy of the paper by Drs Wagner and Sleggs that was published in the British Journal of Industrial Medicine in 1960. He thought that it was obtained from either Dr McCullagh or the Mitchell Library (ts 143). Again, he did not identify when he received that paper. He also obtained a copy of the Annals published following the New York Conference (exhibit 16, pars 87 89). According to Mr Russell, Mr Simpson (who was the assistant chief chemist at Camellia) and Mr Gilbert also obtained copies of the Annals (ts 144).

434 Mr Russell gave evidence of a monthly safety meeting held some time in about early 1964 at which he urged that the defendant should provide a warning to end users of asbestos products that would identify the risks of inhaling asbestos dust. That reflected his concern about the risks posed to end users in using asbestos products manufactured by the defendant (exhibit 16, pars 105 113). Dr McCullagh, Mr Cohen, Mr McDonald and others were present at the meeting. By this time, Mr Russell had become 'distressed by my inability to do anything significant about the asbestos problem at the Camellia plant' (exhibit 16, par 179 and see also pars 127 128).

435 In November 1964, Mr Russell wrote a memorandum that he distributed to various managers within the defendant, including Mr Pysden and Mr Cohen and which was prepared to express his concern about the risks associated with asbestos (the memorandum was annexed to Mr Russell's witness statement and was reproduced in full in the statement). The memorandum made no reference to mesothelioma, although it did refer to the association between asbestos and lung cancer. Various scientific publications were listed in the memorandum but there was no reference to any article by Drs Wagner and Sleggs. (Buried within one of the articles listed by Mr Russell was a fleeting reference to pleural mesothelioma as a risk of asbestos exposure; exhibit 19, page 1351). At one point in the memorandum Mr Russell warned that the defendant could in the future be a 'sitting duck' for claims 'not only for what has been known in the past as asbestosis but also for cases of lung cancer and possibly, heart condition'. Again, there was no reference to mesothelioma.

436 Mr Russell worked between 1964 and 1970 as a quality controller in the defendant's brake lining division (exhibit 16, par 140). He stated that during the second half of the 1960s he read various articles in medical journals dealing with the relationship between asbestos exposure and mesothelioma. The articles included papers by Drs Newhouse and Thompson and Dr Selikoff and his colleagues. He did not state whether he discussed the contents of those articles with any of the defendant's managers or took any step to bring the articles to the attention of any manager within the defendant.

437 At par 155 of his witness statement, Mr Russell stated that 'senior people' in the defendant were 'well aware of the problems with the use of asbestos and the difficulties that this was causing in the longer term for the health of its employees'. That assertion was said to be based on his experience with the defendant as detailed in his witness statement. Mr Russell also stated in the same paragraph that he had raised risks to end users and the company's obligation to put warnings on its products. The inference sought to be drawn was that Mr Russell was concerned about the risk of end users contracting mesothelioma (see par 118 of his statement) and the defendant was aware of that risk.

438 At par 156 of his witness statement, Mr Russell stated that the defendant 'adopted an official and public line that asbestos exposure was not dangerous unless the exposure was intense and of long duration'. He then asserted that he knew that the company's position was not true from the material that he had reviewed and that he had told other officers at the defendant that the company's 'official and public line' was not true.

439 The use that the plaintiff sought to make of the evidence contained in pars 155 and 156 of Mr Russell's witness statement was not entirely clear. Mr Russell's evidence was summarised at section 10.9 of the plaintiff's closing submissions and pars 155 and 156 were reproduced in full. Those paragraphs were again reproduced in section 10.12(g) of the plaintiff's closing submissions in a section entitled 'Key matters not communicated' and which appeared to be an attack on the defendant for not publicly disclosing information that it was said to possess about the risks of exposure to asbestos.

440 The plaintiff also cited Mr Russell's evidence at pars 102 to 108 of his witness statement to submit that he was one of two 'senior asbestos industry employees' who 'believed there was a risk of mesothelioma at low doses, including to asbestos cement users' (plaintiff's closing submissions, section 10.14). That submission formed part of a series of matters relied on by the plaintiff to contend that 'the risk [to] the plaintiff from his exposure to [the defendant's] asbestos waste at Castledare in 1972 and 1973 was clearly and incontrovertibly foreseeable'.

441 It is convenient to make findings concerning Mr Russell's evidence at this point:

(a) No attempt was made by the plaintiff to establish that Mr Russell's knowledge of the relationship between exposure to asbestos and asbestosrelated disease should be attributed to the defendant so as to form part of its corporate knowledge other than by reference to his designation as 'safety officer'. There was no evidence as to what his responsibilities were as the fire and safety officer at Camellia, as to his authority or where he fitted in the defendant's management structure. There was also no evidence that he undertook his researches as part of his duties as the fire and safety officer or later, as a quality control officer in the brake lining division, so that he was under an obligation to report whatever he learnt to others in the defendant's management. Consequently, I find that whatever knowledge Mr Russell possessed and the beliefs that he held did not form part of the corporate knowledge of the defendant, except to the extent that his knowledge and beliefs were communicated to someone within the defendant who did form part of its mind or who was under a duty to further convey any communication by Mr Russell about asbestosrelated diseases to such a person. Otherwise Mr Russell's knowledge and beliefs could only be relevant to indicate what might have been learnt by somebody investigating a relationship between asbestos and disease by, for example, making inquiries through the Mitchell Library; that is, the evidence might be relevant to determining what the defendant ought reasonably to have known.

(b) Mr Russell's evidence at pars 155 and 156 were conclusions that were admitted to the extent that they were evidence of his knowledge and beliefs. The evidence did not establish any element of knowledge held by the defendant given the finding made in the previous paragraph. In any event, little weight should be accorded to the statements made in pars 155 and 156 having regard to the general way in which the evidence was expressed. Recourse to the balance of Mr Russell's evidence served only to confine the generality of the statements made in pars 155 and 156 in a way that did not assist the plaintiff.

(c) The submission made in section 10.2(g) of the plaintiff's closing submissions concerned Mr Russell's beliefs. Those beliefs were irrelevant to establishing the defendant's actual knowledge for the reasons that have been given.

(d) Paragraphs 102 to 108 of Mr Russell's witness statement concerned his beliefs at the time of the safety meeting said to have been held in early 1964. Mr Russell's account of that meeting was challenged in crossexamination. However, I can find no basis for rejecting his evidence of what occurred at the meeting.

(e) Nevertheless, I do not accept that Mr Russell had formed the belief attributed to him in section 10.14 of the plaintiff's closing submissions that there was a risk of contracting mesothelioma from low doses of exposure to asbestos, including exposure to asbestos cement products by early 1964 or, indeed, during the time that he was the fire and safety officer at Camellia. Mr Russell made only one reference to a concern about mesothelioma in his witness statement (par 118). The statement was not specific as to the time when he became aware of the risk of contracting that disease. Further, it is inconceivable that Mr Russell would not have referred to such a belief in his memorandum of November 1964 given its significance and purpose if he had held a concern about mesothelioma at that time. The inference to be drawn from that omission is not overcome by referring to the mention of mesothelioma buried within exhibit 19 and the fact that this was one of the articles listed at the end of Mr Russell's memorandum (especially as the article was devoted almost entirely to a patient with asbestosis and lung cancer as a secondary complication).

When did the defendant first learn of the study by Drs Wagner and Sleggs?

442 It is relevant to identify when the defendant first learnt of the study by Drs Wagner and Sleggs. The matter was not entirely clear from the documents tendered by the plaintiff and it is only possible to make the following findings on the evidence that has already been considered:

(a) The defendant was aware by no later than May 1965 that research had been undertaken into the 'discovery' that inhaled asbestos fibres could cause mesothelioma. Dr Gandevia's letter of February 1965 (exhibit 55) had referred to recent published work that was said to have left no doubt about the relationship. The article accompanying Mr Page's memorandum of May 1965 (exhibit 65) referred to the 'discovery' that asbestos fibres could cause mesothelioma. It did not refer to Dr Wagner's study but it plainly drew on what was publically known about the study's findings or the work of other researchers such as Dr Selikoff and his colleagues. Mr Page expressly acknowledged that the article was typical of current medical opinion.

(b) Dr McCullagh must have known about the detail of the study and also the work of Dr Selikoff and his colleagues by no later than March 1966 when he made his notes on the Annals.

443 Exhibit 53 was a document entitled 'Mesothelioma'. It clearly referred to the study undertaken by Dr Wagner and his co-researchers, stating that the study indicated a possible link between exposure to blue asbestos and pleural mesothelioma. The document then referred to a study of workers who had worked for at least six months since 1935 in a factory that had used white asbestos since that time (although the possibility that blue asbestos was used prior to 1935 was noted). The study disclosed that one worker had died of pleural mesothelioma and that 11 workers had died from lung cancer. The number of deaths from lung cancer was higher than expected based on the mortality experience of the general population of the region in which the factory was located. The document was dated 28 February 1964. It appears from references within the document that it may have been created by or given to the Asbestosis Research Council. It was discovered by the defendant but there was no evidence as to the circumstances in which it came into its possession. Senior counsel for the plaintiff made no submissions concerning those matters when the document was tendered (ts 443) but equally, senior counsel for the defendant made no submission at the time of the tender or in closing concerning the providence of the document or the inferences to be drawn from its contents.

444 An inference can be drawn from discovery of the document by the defendant and the fact that no evidence was adduced or explanation given to suggest that it was obtained by it outside the period relevant to the question of reasonable foreseeability. I am satisfied that the document came into the defendant's possession some time prior to June 1968. I also infer from the nature and content of the document that it must have been obtained/received by somebody within the management of the defendant who had an interest in the subjectmatter of the document. However, it is not possible to draw any further inferences from the document; in particular, it cannot be said whether it came into the defendant's possession prior to Dr Gandevia's letter of February 1965 and Mr Page's memorandum of May 1965.

Should knowledge of the study or its findings be imputed?

445 There is a question as to whether knowledge of the study by Drs Wagner and Sleggs and/or its finding of a relationship between exposure to asbestos and mesothelioma should be imputed to the defendant at some time before early to mid1965. It is necessary to consider that question given the plaintiff's submission that the defendant was probably dumping asbestos waste at Castledare before that time and that it was in breach of a duty of care that it owed to residents and visitors by doing so.

446 Little attention was devoted by the parties to the question of the imputation of knowledge generally. The plaintiff described the medical and scientific publications that were tendered as 'publicly available documents'. However, as the judgment of Ipp JA in McPherson's Ltd indicated, the fact that a document was publicly available does not provide a sufficient basis for imputing knowledge of its contents to a party.

447 I would have been willing to impute knowledge of the study and/or the findings of Drs Wagner and Sleggs if there had been no evidence that the defendant actually knew of the study. However, there would still be a question about when the defendant ought reasonably to have known of the study and its findings. The plaintiff made no submission that assists in answering that question (its contentions regarding the findings on foreseeability focussed on the position in 1972 and 1973; see the plaintiff's closing submissions, section 10.14). In the circumstances, I am only prepared to find that the defendant ought to have known about a possible connection between exposure to asbestos and mesothelioma by about the end of 1964 having regard to the following matters:

(a) While Dr Smither was aware of the study by 1962, I have not been able to find any reference to it in the material from the Asbestosis Research Council that was tendered by plaintiff (except, possibly, exhibit 53).

(b) The primary basis for imputing knowledge to the defendant about developments in medical and scientific knowledge concerning the risk of harm from exposure to asbestos is its then position as a manufacturer of asbestos products with a substantial workforce across Australia that was handling asbestos daily. The study by Drs Wagner and Sleggs and the research presented at the New York Conference obviously had significant implications for manufacturers of asbestos products. However, there was little evidence from which a finding could be made about what an asbestos manufacturer ought to have known. Mr Russell's evidence on the point has been rejected. Professor Musk referred to the study by Drs Wagner and Sleggs as putting the association between asbestos and mesothelioma 'on the map' but that does not permit an inference to be drawn about the knowledge to be imputed to the defendant. Similarly, it was not clear whether his reference to the presentation by Drs Wagner and Sleggs at the 1959 Johannesburg Conference attracting 'world wide' exposure at the conference was intended to refer to the audience or to a wider community.

(c) The evidence disclosed that Dr Croll and Dr McCullagh had been consulting to the defendant from the early 1960s. Further, Dr Gandevia's letter of February 1965 suggested that the defendant had been monitoring developments in medical and scientific knowledge about exposure to asbestos from some time earlier and that it was in contact with, at least, local medical researchers. Mr Page must have been aware of recent research being undertaken into asbestosrelated disease prior to May 1965 to have described the newspaper article attached to his memorandum as representing current opinion. Those matters suggest that it is reasonable to impute knowledge to the defendant about significant developments in medical and scientific knowledge about the risk of harm from asbestos from about late 1964. This is, in my view, all that can be inferred on the evidence. The plaintiff did not adduce evidence that the defendant ought to have had a system in place for reviewing those developments some time earlier.

Other evidence of the defendant's knowledge of the study by Drs Wagner and Sleggs

448 There were other documents discovered by the defendant and tendered by the plaintiff that referred to the study by Drs Wagner and Sleggs:

(a) The index to the Annals of the New York Conference (exhibit 191, number 28; and note that the Annals were not published until December 1965) indicated that Dr Wagner delivered various papers at that symposium, including on the epidemiology of diffuse mesothelial tumours, which presumably Dr McCullagh read as part of his review of the Annals. Exhibit 92 was a memorandum dated 22 June 1966 from Mr Pysden to HC Hadgrove. The memorandum contained Mr Pysden's comments on a publication that was not in evidence. However, it is clear from the memorandum that Dr McCullagh's précis of the Annals had been provided to Mr Pysden (see also exhibit 60 which indicated that Mr Page had apparently reviewed either the Annals or a paper delivered at the New York Conference). The memorandum also indicated that Mr Pysden was aware of medical research on the connection between asbestosis and lung cancer and that measures were being taken to improve medical services provided to workers at Camellia.

(b) Exhibit 127 was a letter dated 22 March 1968 from Dr McCullagh to Mr Major, who was described as a physicist at the School of Public Health and Tropical Medicine, University of Sydney. Mr Winters gave evidence that he met with Mr Major and others after he had been appointed the defendant's industrial hygienist. He described Mr Major as a person who was very involved with monitoring asbestos dust (ts 565). Dr McCullagh's letter was written in reply to a letter from Mr Major that was not tendered in evidence. However, Dr McCullagh expressed agreement with a view apparently expressed by Mr Major that it was most important to know the parameter of asbestos fibre that was 'most closely related to the biological effects and further, to know the harmful value of that parameter'. Dr McCullagh further stated that he had to protest that Mr Major was overly concerned with the problem of neighbourhood contamination. He characterised the evidence on neighbourhood contamination producing asbestosis as being very slight and applied only to the very special circumstances of the NorthWest Cape that is, to the area that had been studied by Dr Wagner and his colleagues. The letter continued:

The only other evidence relates to crocidolite and mesothelioma (Newhouse and Thompson [the Annals] ...). The possible problems of neighbourhood contamination merit watching, but, as far as asbestosis is concerned, I know for instance of no authority for Schall's statement ([the Annals] ...) that 'cases both of asbestosis & neoplasia associated with asbestosis which have been recorded following the minimal exposure of community environment' ... I shall certainly be pursuing this question overseas and if there is any information to be had hope to come back with it.

(c) In April and May 1968, Mr Palfreyman and Dr McCullagh travelled to Canada and the United Kingdom and attended the Second International Conference on the Biological Effects of Asbestos held at Dresden. Dr McCullagh produced a report on what they learnt from their travels (exhibit 135). Dr McCullagh stated in his report that:

(i) Much attention had been paid at the New York Conference to the risk of harm from ambient asbestos. No further evidence had been provided to support the view that there was a risk so that the only clear evidence that remained was that reported by Dr Newhouse 'which deals only with mesothelioma occurring in the immediate neighbourhood of an asbestos plant, now closed, which handled crocidolite' (page stamped '248'). However, further research on this matter was noted.

(ii) 'Mesothelioma continued to engage much attention and the possibility that chrysotile is mesotheliomogenic is being investigated. In New York in 1964 the importance of distinguishing between the different biological effects of the major fibre types was emphasised, now increasing attention is being given to distinguishing between different biological effects within major fibre types thus there is some suggestion that Normandie chrysotile may be more mesotheliomogenic than other chrysotiles' (page '247').

(iii) Over the past 10 years there had been sporadic reports of mesothelioma attributed to chrysotile exposure. Dr Selikoff considered that the workers he studied had not been significantly exposed to crocidolite, while Dr Wagner's view was that there was no established case of chrysotile mesothelioma. Further research was being undertaken (page '250'). Dr McCullagh noted that Dr Wagner reported at the conference on experiments that demonstrated that all types of asbestos caused mesothelioma in rats, with one form of chrysotile apparently being more toxic than other forms (page '282'; see also the comments about Dr Wagner's views at page '290').

(iv) There had been no suggestion that amosite caused mesothelioma but a group of persons who had been exposed to insulation made from amosite was being studied (page '250').

(v) There was growing evidence that lung cancer attributable to asbestos exposure might occur in the absence of asbestosis (page '250').

(d) An article appeared in The New Yorker in October 1968 that referred to Dr Wagner's work in the course of a reasonably detailed history of medical research into the relationship between asbestos and disease (exhibit 141). The article was distributed by Mr Page to a number of persons within the defendant (exhibit 152).

Evidence of the defendant's knowledge of other epidemiological studies

449 There was also a reference to Dr Wagner (but not expressly to his 1960 publication) in an interhouse letter from Dr McCullagh to Mr Page, Mr Gilbert and Mr Palfreyman (who was referred to as being located in Perth) dated 24 January 1968 (exhibit 115). The subject of the memorandum was 'Asbestos, Cigarette Smoking & Lung Cancer'. It attached either a note of an article appearing in the New Scientist on 6 July 1967 or perhaps more likely, a reproduction of that article which, as the heading to the accompanying memorandum suggested, concerned the relationship between lung cancer, exposure to asbestos and cigarette smoking.

450 The article (and the interhouse letter) referred to research by Drs Selikoff, Churg and Hammond that suggested that a combination of exposure to asbestos dust and cigarette smoke increased the risk of dying from cancer some 90 times. The note/article concluded:

The report stressed that while these findings are obviously important to asbestos workers, they may also have a grave implication for the population at large. Asbestos is now handled and used on a very large scale, and within recent years, postmortem studies in various parts of the world have shown that 25 to 50% of adults have asbestos fibres in their lungs. It could transpire that a highly dangerous combination of asbestos dust and cigarette smoke is responsible for the rocketing lung cancer figure.

451 It should be noted that Dr McCullagh's accompanying memorandum indicated that he did not uncritically accept everything that was reported in the article. For example, he noted that the findings by Dr Selikoff and his colleagues did not appear to be entirely consistent with findings by Drs Knox, Doll and Hill in the United Kingdom which suggested that 'following the establishment of adequate dust control in 1933 the lung cancer rate has been no different from that of the community generally'. Dr McCullagh also commented that research had not established the claim that '25% to 50% of adults have asbestos fibres in their lungs'.

452 Dr McCullagh's notes on the Annals and his report of the trip to Canada, the United Kingdom and the Second International Conference in Dresden indicated that he was aware of the study by Drs Selikoff, Churg and Hammond. His notes on the Annals indicates that he knew of the study from early 1966.

453 The letter from Dr McCullagh to Mr Major (exhibit 127) referred to Drs Newhouse and Thompson. There were other documents that indicated that the defendant was aware of their research (and I note that by 1970, Dr McCullagh was apparently corresponding regularly with Dr Newhouse see exhibit 229, page stamped '229'):

(a) The interhouse letter dated 15 February 1966 from Mr Reid to Mr Pysden that attached the newspaper article that featured the study by Drs Newhouse and Thompson (exhibit 58). The content of the article has already been summarised but it should also be noted that it indicated that consideration was being given in the United Kingdom to recognising mesothelioma as an industrial disease for compensation purposes.

(b) The index to the Annals indicated that Dr Newhouse made a presentation at the New York Conference. Her presentation was apparently referred to in passing in Dr McCullagh's notes of the Annals (exhibit 61, page 5).

The factory managers' conferences of 1966 and 1967

454 Dr McCullagh made a presentation to the July 1966 factory managers' conference. Exhibit 93 comprised notes of the presentation. The notes recorded a number of points that were made in the course of Dr McCullagh's presentation, including that:

(a) Recent literature had reported 'fairly conclusive' evidence that asbestos dust when inhaled could cause lung cancer and cancer of the chest cavity lining (mesothelioma) as well as asbestosis.

(b) The weight of evidence linking asbestos with cancer was not as strong as the case that had been built up against smoking. It also appeared that asbestos dust 'at the worst is no more dangerous than smoking'.

(c) There was no safe upper limit for asbestos dust. The maximum allowable pollution in the USA and Australia was 5 mppcf. The aim in the United Kingdom was nil.

(d) Any exposure was dangerous and cumulatively, the absolute maximum should be not more than five years at 5 mppcf.

(e) The most dangerous particle size was up to 10 microns but it had been shown that particles up to 200 microns and down to 1 micron could lodge in the lung (in Mr Psyden's memorandum to Mr Reid dated 16 February 1966 (exhibit 59), it was said that dust was measured in microns, a micron being onemillionth of a metre; 1,500 microns would cover the head of a pin).

(f) Heavy exposures caused asbestosis, lighter exposures could cause cancer. Therefore, as dust levels reduced it was expected that more cancers would become apparent.

(g) Asbestos was now suspected as an environmental pollutant in areas around factories that used asbestos. The main danger was to people living within half a mile of the source, with studies in London and Finland showing that cases of cancer of the chest lining were more prevalent in those areas. It was, therefore, possible that restrictions would be placed on the sites of asbestos-using factories in the future. It was inevitable that much tighter dust control measures would be required.

(h) It was almost inevitable that any lung cancer that developed in employees who had even minimal exposure to asbestos would be classified by the courts as compensation cases.

455 An extract from the minutes of the June 1967 factory managers' conference (exhibit 103) noted that dust control in the defendant's factories and medical supervision of employees were now essential as, among other things:

(a) Research had established that exposure to asbestos dust in reasonable concentrations caused asbestosis. More recent medical research had established a relationship between contact with asbestos and mesothelioma and lung cancer.

(b) The incidence of mesothelioma was very low but newspaper publicity could build 'it' up to such an extent that 'it' could cause the imposition of 'very severe' regulations by health authorities and resistance to the use of products containing asbestos.

(c) Those consequences could be obviated if the defendant got its house in order by demonstrating that the hazards that might exist from asbestos were controlled within the industry.

(d) The Asbestosis Research Council had issued a 'standard code of practice' for handling asbestos cement products and asbestos insulation 'in an attempt to assure the public that no danger exists if they are handled in the correct manner'.

456 According to the minutes, a dust control system was proposed that would involve, among other things, measuring dust levels in each factory with action to be taken by 'branch personnel' where it was found that a dust count at any point within a factory was above the acceptable limit specified by the relevant health authorities. The note indicated that an industrial hygiene engineer had been appointed and s/he was to be responsible for all dust counts that were to be taken. Finally, it was stated that a dustfree method of disposing of dust collected from bag shaking was required. An experiment was being undertaken with a bagging machine to bag all dust collected from automatic bag shaking equipment.

Other documents relevant to the state of the defendant's knowledge by about June 1968

457 In late 1966, Mr Cohen and Mr Gilbert visited factories operated by Johns Manville, a miner and manufacturer of asbestos products in North America (ts 566). Mr Gilbert produced a report of discussions with Johns Manville's manager of health (exhibit 96). The report indicated that:

(a) Johns Manville was actively seeking to control the quantity of dust generated in its factories, reducing dust levels at work stations to below 5 mppcf. Mr Gilbert commented on the need for the defendant to 'press on' with its dust reduction programme as a matter of urgency.

(b) Johns Manville's concern was with asbestosis. The report stated that, 'JM claim, with some justification, that there is no documentation that can stand up to examination which definitely establishes asbestos as a carcinogenic substance'. Reference was made to a survey undertaken by Johns Manville that suggested that its employees did not have higher rates of cancer but the health manager stressed that the survey was not conclusive evidence and could only be taken as a broad indication. It did not accept the study by Dr Selikoff nor reports concerning asbestos as an environmental pollutant.

(c) Johns Manville had a dust control policy that included a ban on using ground scrap pipe or lathe turnings as a fill material.

458 The defendant also obtained a copy of minutes of a meeting of the safety committee of the BP Group held in May 1967 (exhibit 109). It is not clear how the defendant obtained a copy of the minutes but they were sent to Mr Page attached to an inter-house letter dated 27 July 1967. The minutes recorded that Esso was using substitutes for asbestos and that:

[T]he relative hazards of the various forms of asbestos used in industry have not yet been established but it is thought that the type of lung and stomach cancer that may be contracted after light exposure to asbestos dust may be particularly associated with crocidolite, or blue asbestos, which is one of the three most common forms. Although the different forms of asbestos have been intensively investigated, the nature of the carcinogenic effect remains obscure.

459 The minutes further recorded that the committee was requested to consider the use of asbestos in the Group so that controls could be introduced or a decision taken to eliminate asbestos where suitable substitutes could be found.

460 The plaintiff tendered other documents discovered by the defendant that were relevant to the defendant's knowledge of the risk of harm from exposure to asbestos and which were created at various dates in 1967 and 1968:

(a) A letter dated 9 October 1967 from Dr McCullagh to the Asbestosis Research Council (exhibit 113) that indicated an awareness of an increasing concern over the safety of finished asbestos cement products. Dr McCullagh expressed the view that it was important to distinguish between raw asbestos fibre and finished product and enquired whether there was research concerning the biological effects of exposure to the latter. He also referred to research reported in the Annals to the effect that in 20% 25% of cases of mesothelioma there was no history of exposure to asbestos.

(b) A paper entitled 'Pneumoconiosis in Queensland' by Dr Rathus that was said to have been delivered at the first Australian Pneumoconiosis Conference in February 1968 (exhibit 125). The circumstances in which the defendant received the document were not apparent from its contents or other evidence. However, I infer from the fact of discovery, the nature and contents of the document and the absence of any objection by the defendant that Dr Rathus' paper was received within a reasonable time after the conference and came to the attention of somebody within the management of the defendant concerned with occupational health. The paper referred to three cases of mesothelioma diagnosed in Queensland. Two cases were of pleural mesothelioma; 'both patients showed the usual association of minimal to moderate exposure to asbestos fibre', while the third case was said to demonstrate 'the commonly described minimal association with asbestos' (page 388). It was said that the patient's exposure was 'quite insignificant' (he worked with asbestos for approximately half an hour on two occasions each month over a fiveyear period). However, asbestos bodies had not been demonstrated on histological analysis leading Dr Rathus to observe that, 'the association with asbestos may be regarded as dubious, but a faint aura of uncertainty unhinges logic in the face of mounting data inculpating such trivial episodes' (page 388).

(c) In a letter dated 1 March 1968, Dr McNulty wrote to Dr McCullagh noting that threshold limit values proposed by the Industrial Hygiene Foundation of America Inc stated that no safe limit could be established for crocidolite (exhibit 218). It was in response to that letter that Dr McCullagh advised Dr McNulty that Mr Waters had indicated there was little blue asbestos left in Western Australia (exhibit 126).

(d) By letter dated 16 June 1968, Dr McCullagh wrote to Dr Smither at the Cape Asbestos Co Ltd in London (exhibit 149). Dr McCullagh enquired about Dr Smither's view that peritoneal tumours were not malignant. He also stated, 'the other thing that occurs to me is that the low incidence of these tumours and the trifling exposure histories that are so commonly recorded suggests that their occurrence is idiosyncratic and this in turn suggests that those in whom the tumours develop may have some detectable characteristic on the basis of which one could predict the development of such a tumour following asbestos exposure'. Dr Smither replied by an undated letter in which he stated that he had an open mind on the question of idiosyncrasy. He was cooperating with another researcher to investigate whether the disease was a dose response or an immunopathological response in exposed workers. However, he inclined 'more to the feeling that exposure in early life is a significant factor', believing that 'the developing pleura and peritoneum, like many other tissues, is more vulnerable to insult' (exhibit 149).

(e) It appears that in October 1968 the Acting Chief Engineer of the New Zealand Post Office wrote to the defendant regarding possible harm from exposure to asbestos. Mr Page drafted a response that stated, among other things, that 'whether the dust liberated from the cutting or machining of asbestos cement products is clinically harmful is not proven but it certainly cannot be beneficial' (exhibit 142). Mr Page added, 'the industry point of view is that it should be regarded as harmful and that control measures should be adopted'. The draft contemplated that a copy of the Asbestosis Research Council's code on handling and working with asbestos and asbestos cement products would be provided with the defendant's reply. It is significant that the draft was prepared by Mr Page and that it expressed what was said to be an industry point of view.

(f) In October 1968, Mr Page drafted a statement that was to express the defendant's public position on the risk of harm from exposure to asbestos. The draft was sent to Mr Gilbert and Dr McCullagh for comment. Mr Gilbert sent a revised version back to Mr Page indicating that it had been read and amended by Dr McCullagh and himself (exhibit 184). The statement identified two diseases as being associated with asbestos - asbestosis, which might be complicated by lung cancer after long exposure in high dust levels, and mesothelioma. The statement also advised that:

(i) asbestos was only a risk to health if 'substantial amounts of airborne asbestos dust are inhaled' and the general public was not exposed to that hazard;

(ii) only in 'extremely rare' cases had there been any suggestion that 'incidental' exposure to asbestos dust had been harmful;

(iii) 'despite intensive general investigations into the health hazards of exposure to asbestos dust, there is no known risk to the general public for example from asbestos containing materials in buildings, or asbestos in domestic appliances such as stove mats or ironing boards or dust produced by the wear of brake linings';

(iv) a connection between asbestos and mesothelioma had only been discovered in recent years; the condition was 'rare and preliminary investigation indicates that it may be associated with crocidolite or blue asbestos, rather than the various grades of white asbestos that are used in the company's products'.

(g) Exhibit 151 was a report by Dr McCullagh which was described as his annual report for 1968. The report was undated but a copy was sent by Mr Gilbert to Mr Page by an inter-house letter dated 9 January 1969. Under the heading, 'Bronchogenic Carcinoma and Mesothelioma', Dr McCullagh stated that the association between asbestos exposure and each of those conditions was well established.

461 The results of the dust sampling and count programme proposed at the 1967 factory managers' conference were apparently reported to the conference held in June of the following year (exhibit 136). The report stated that the defendant had set a dust level target of 5 mppcf. Much of the balance of the report was directed to measures that could be taken to reduce dust levels within each factory. However, the report also referred to dust collection and continued:

The company policy on disposal of material collected in dust including the green turnings from pipe sockets, etc is that it must be dumped in a suitable tipping area and completely covered in some manner so that it will not blow around. It must not be sold or given to factory employees and must not be used to make hard standing within our own factories except where it is covered with some suitable hard wearing topping.

The problem of dust contamination has, over the past few years, become a matter of prime importance from every point of view, not the least being the future market acceptance of products containing asbestos fibre. It is essential that we take all necessary steps to rectify and to control the position. It is probable that it will soon be accepted overseas for the group of employees exposed to 100 fibre years, eg 50 years work in an atmosphere contaminated to an extent of 25/cc, will have a 1% development of asbestosis then it is likely that our maximum dust levels will have to be reduced in the future to approximately 2.5 mppcf on our method of midget impinger testing.

462 Waste disposal was also the subject of a memorandum dated 21 November 1968 from Mr Gilbert to W Williams at the Brooklyn factory (exhibit 144). The memorandum stated that it was company policy that asbestos cement fines were only to be disposed of by dumping at an approved site where they were to be immediately covered in such a way as to prevent them from blowing around and polluting the atmosphere. The fines were not to be used to make hard standing areas and where such areas had already been laid, they were to be covered by a suitable bitumous compound so as to completely seal the surface. The memorandum reflected what was stated at the June 1968 factory managers' conference to be the company's policy.

463 Exhibit 112 was a memorandum prepared by Dr McCullagh and dated 8 August 1967 concerning the medical review of employees at the Camellia factory that had been undertaken as part of the defendant's medical health scheme. The plaintiff highlighted those aspects of Dr McCullagh's review that indicated an awareness of the possibility that individual susceptibility to contracting an asbestosrelated disease might vary (see pars 5 9 and 10 12 of the memorandum; ts 835 836; and the plaintiff's closing submissions page 188). At pars 3 to 5 of the review Dr McCullagh also stated that:

Medically the older an employee on first exposure the better since such ill effects of exposure as occur are long delayed and thus the older an employee on first exposure the less likely is it that such affects develop in the life span remaining to him. While it is clearly not practical to establish extreme old age as a condition of engagement, nonetheless where possible, older job applicants should be preferred to younger ones and older new employees should be preferred for the dustier jobs. The operation of these policies will operate to protect both the health of the employee and the pocket of the employer.

464 That passage reflected what the plaintiff categorised as a policy pursued by the defendant, reference also being made to a memorandum dated 6 May 1966 from Dr McCullagh to Mr Gilbert (exhibit 90) and a further report by Dr McCullagh that was undated but was prepared some time in about late 1968 (part of exhibit 151). The plaintiff referred to that policy in pejorative terms see, for example, at page 191 of his closing submissions where the policy was referred to under a heading 'Lack of appropriate care and concern for public health'. The point sought to be made by the submissions appearing under that heading was that the defendant placed its economic selfinterest ahead of the welfare of its employees and the public generally.

465 I have set out the relevant passage from Dr McCullagh's review as it captured what I understood to be the policy that the plaintiff contended the defendant pursued and because the matter was emphasised in the course of the presentation of the plaintiff's case at trial. However, I did not find the plaintiff's submissions assisted in determining the relevant issues. There was no evidence that the defendant agreed to dump asbestos cement waste at Castledare out of economic selfinterest (for example, the plaintiff did not lead evidence that there was a cost associated with disposing of waste at other tip sites in Perth that was avoided by dumping the material at Castledare). Further, it was not part of the plaintiff's case that the defendant should have ceased manufacturing asbestos cement products. There was no direct evidence that Dr McCullagh's views about employing older men were formally adopted and implemented by the defendant as a policy. However, such a policy, if it was adopted, would appear to have been no more than a pragmatic response to evidence about the generally long latency period of asbestos-related diseases, at least where it is not contended that the defendant ought to have ceased manufacturing asbestos cement products.

466 However, Dr McCullagh's recognition of the long latency period for asbestosrelated diseases, including mesothelioma, highlighted the obvious point that there is a different risk profile for children exposed to asbestos than for older adults regardless of whether children are more vulnerable physiologically.

Evidence of the defendant's knowledge between 1969 and 1974

467 The period considered in this section of the reasons covers the time during which it has been found that the defendant disposed of asbestos cement waste at Castledare and when the plaintiff visited Castledare to ride on the miniature railway. In summary, the documents relevant to the defendant's knowledge of the health risks associated with exposure to asbestos dust in this period were:

(a) The 12th annual report of the Asbestosis Research Council for the 12 months beginning 1 October 1968 (exhibit 139). The report indicated that during 1968/1969 research on the pathogenesis of mesothelioma using animals had continued. The experiments involved both crocidolite and chrysotile. Further, the report advised that an environmental control committee had been established and working groups had been set up within the committee. One of those groups was required to provide 'basic information on various aspects of environmental control common to all factories' and had for that purpose formed subcommittees, including a subcommittee on the disposal of waste. It was further noted that during the year a code of practice for the disposal of waste had been published by the Asbestosis Research Council in consultation with the Ministry of Housing and Local Government (see the first appendix to the report).

(b) An extract from the minutes of the factory managers' conference, September 1969 (exhibit 154). The extract contained a presentation by Dr McCullagh on the biological effects of asbestos. The presentation included the following statement:

We know that crocidolite causes mesothelioma in man, but it has also been suggested, by Selikoff and others, that chrysotile is not much less guilty. At Johannesburg, McDonald, of McGill University, reported that mesothelioma remained a very rare disease in Canada and he concluded that chrysotile, if not fully free of this danger, was at most a very weak mesotheliomogenic agent.

The balance of Dr McCullagh's address suggested that he did not accept that it had been established that asbestos fibres in the urban environment could cause asbestosis, lung cancer or mesothelioma. He referred to Dr Selikoff and others rejecting the suggestion that the population at large was at risk of contracting mesothelioma.

(c) Minutes of the meetings of the defendant's environmental control committee (exhibit 160). Exhibit 160 comprises minutes of eleven meetings of the committee held between 22 January 1971 and 19 January 1974. The minutes were detailed and it is not possible to do more than identify those aspects of the matters discussed that were particularly relevant to the questions of duty and breach. The minutes disclosed that:

(i) The inaugural meeting of the committee was held on 22 January 1971.

(ii) At the inaugural meeting it was agreed that monitoring of waste asbestos dusts 'should be done but with caution'. Dr McCullagh was to instruct Mr Winters accordingly. As previously noted, the minutes gave no indication as to why the monitoring was to be undertaken with caution.

(iii) The next meeting of the committee was held on 29 March 1971. The minutes recorded 'dust control asbestos waste tips. No counts were yet available (see note below)'. The note at the end of the minutes expressly referred to Castledare and to the dust samples taken by Mr Winters. The note was reproduced in full earlier in the reasons.

(iv) The disposal of waste was further considered at a meeting of the committee held on 6 October 1971. It was noted that those present thought that it was company policy that jute bags used for the delivery of asbestos were to be destroyed (it appears that, at least in some instances, the bags had been sold to be pulped for the manufacture of carpet underlay). It was agreed to undertake further investigations. It was also noted at the meeting that regulations were being drafted in New Zealand on the use of asbestos products in the construction industry and that unions were expressing great concern over the hazards of handling such products. The government had banned the use of crocidolite.

(v) A report on the disposal of hessian and plastic bags used for delivering asbestos was received by the committee at its meeting held on 8 December 1971. It was noted that hessian bags used for the supply of asbestos to the Welshpool factory were dumped and covered and that all plastic bags were either burnt or dumped and covered. The committee concluded that all bags should be mutilated so that they could not be used as such and that they should be burnt or dumped and covered. Other items considered at the meeting indicated that the committee was aware of concern about exposure to asbestos dust in shipping and handling asbestos and about moves to adopt the British Asbestos Regulations 1969 in various States, including Western Australia. The question of government regulation within Australia and elsewhere was apparently given detailed consideration at the meeting of the committee held on 29 February 1972.

(vi) Waste disposal was again considered at a meeting of the committee held on 12 April 1972. The minutes recorded that the chairman of the committee, Mr Cohen, 'believed that it was here that our problems would next arise and that before long State or local government authorities would maintain a register of those tips at which asbestos containing wastes might be dumped. Mr Apps observed that Hardie Ferodo was already having some trouble'.

(vii) A survey of fibre counts at waste disposal tips was considered at the 6 April 1973 meeting. It was noted that in the absence of strong winds, the very high dust levels occurred during dumping but they dropped rapidly to below 2 f/cc. That appeared to be a general observation based on summaries of samples taken at more than one site. Dust counts taken at tips apparently continued to be monitored during 1973 and 1974. At a meeting of the committee held on 19 June 1974 it was noted that 'airborne asbestos levels at all tips remained within satisfactory limits'.

(d) In June 1971, the defendant published a bulletin entitled 'Biological Effects of Asbestos' (exhibit 161). Much of the bulletin was directed to asbestosis. However, in a section on 'asbestos in the air about us', it was stated that 'the levels of asbestos in the general urban environment are extremely low and there is not a shred of evidence to suggest that they are harmful'. After reviewing some research literature the bulletin stated, 'the only possibility that remains is that crocidolite may sometimes rise to dangerous levels in the neighbourhood of places where it is processed and thus give rise to mesothelioma in people not occupationally exposed to the fibre'. Reference was made to the research of Drs Newhouse and Thompson. The bulletin went on to dismiss asbestos brake linings as a source of environmental asbestos. It is to be noted that an article by Dr McCullagh also entitled 'The Biological Effects of Asbestos' was published by 'The Medical Journal of Australia' in July 1974 (exhibit 190) in which he stated that it was generally accepted that all commercially used forms of asbestos, with the exception of anthophyllite, could cause mesothelioma, although the 'overwhelming majority' of cases were attributable to exposure to crocidolite. Reference was made to the 1972 report by the International Agency for Research on Cancer (exhibit 191, tab 53). The article also contended that there was no evidence that ambient asbestos was harmful.

(e) In February 1972, Dr McCullagh distributed an interhouse letter to the 'technical director' and the 'personnel director' outlining reading he had recently undertaken (exhibit 187). The list of publications read was extensive. His notes indicated that it was generally considered that environmental exposure was not dangerous, although a contrary view was held and that he regarded the paper by Lieben and Pistawaka referred to earlier in the reasons as a 'naughty paper'. His notes also posed the question by reference to the 1971 paper by Dr Wagner, 'is it only crocidolite or also other asbestoses?' His noted response was: 'the state of play: crocidolite is worst, amosite next, chrysotile perhaps not at all'.

(f) On 30 March 1972, Dr McCullagh wrote to a person who cannot be identified from the evidence attaching an abstract from a paper delivered by Dr Elder to the annual general meeting of the Victorian branch of the Thoracic Society of Australia (exhibit 167). It is clear from his comments that Dr McCullagh regarded Dr Elder as someone who was antagonistic to the asbestos industry. However, he apparently considered the paper delivered by Dr Elder to be 'sound and responsible'. The abstract attached to Dr McCullagh's letter was dated 23 March 1972 and included the following statements:

Mesothelioma, which in 85% of cases is attributed to asbestos exposure, is less easy to prevent, as this tumour occurs with minimal exposure, is not related to the development of asbestosis or cigarette smoking, but is probably attributable to exposure to crocidolite and perhaps amosite, rather than to other types of fibre ... The possibility that with increasing world consumption of asbestos, mesothelioma may become an environmental hazard in the future, suggests that crocidolite and perhaps amosite should be phased out, workers should be better educated as to health hazards, and more power given to government medical officers to enforce safety regulations.

(g) In April and July 1973, Dr McCullagh wrote to the factory manager at Welshpool, with copies to the branch manager for Western Australia, regarding dust counts at the 'tip' used by the Welshpool factory (exhibits 175 and 176). The tip concerned cannot have been Castledare as the interhouse letters concerned dust counts taken on 19 March and 31 May 1973 respectively. The defendant had ceased dumping asbestos cement waste at Castledare by that time. However, Dr McCullagh's observations remain relevant. In the interhouse letter of 13 April 1973 (exhibit 175), Dr McCullagh expressed concern over a high dust count at the tip and noted from the relevant worksheet that a strong easterly wind was blowing at the time. He stated that the count was not a matter of concern if the strong easterly wind was an unusual event and there were no dwellings downwind. However, he stated that, 'if this wind is common and if there are nearby dwellings downwind action must be taken promptly to cover the asbestos material after it has been tipped'. In the July 1973 interhouse letter, Dr McCullagh stated:

I am however somewhat concerned that at the Tip, five minutes after completion of tipping, the asbestos in air level is still 4.8 f.cm 3 we generally expect a far more rapid fall than this. I gather it does not appear from the worksheets that a high wind was blowing at the time. In such circumstances, either because there is a high wind blowing or because the dust being dumped is unusually fine, the prompt covering with earth of the tipped asbestos is most important.

(h) By interhouse letter dated 31 August 1973, Dr McCullagh wrote to the branch manager for South Australia regarding the annual general dust survey of July 1973 (exhibit 177). The letter concluded with observations about a particular dust count, noting that amosite 'much more readily gives rise to high asbestos in air levels than chrysotile'. Dr McCullagh then advised that, 'the attention of foremen and supervisors should be drawn to this so that they may ensure that amosite is handled with the care that it deserves'. See also the interhouse letter from Dr McCullagh dated 29 October 1975 (exhibit 183) in which it was stated that amosite was a much dustier fibre than chrysotile.

468 A further document relevant to the state of the defendant's knowledge in the period 1969 to 1973 was a report concerning the medical and hygiene service dated 14 June 1972, which I infer from its subject matter and content was prepared by Dr McCullagh (exhibit 171). I further infer from the content of the document that it was a draft of a report to be presented orally by Dr McCullagh. There was no direct evidence as to whether the presentation was made but it is to be noted that the document commences, 'Mr Chairman, gentlemen', from which I infer that the report was prepared for presentation on a formal occasion within the management of the defendant (that is further confirmed by the content of the document and the fact that the draft had survived as part of the company's records).

469 Much of the document was directed to asbestosis. However, it contained the following statement relating to asbestosrelated cancers:

Asbestosis leads to a greatly increased risk of lung cancer. Exposure to fine fibred crocidolite, even without asbestosis, may lead to the cancer mesothelioma a cancer of the lining of the lung or of the abdominal cavity. The surgeon may remove a lung cancer successfully but mesothelioma is inevitably fatal we do not, of course, use blue nowadays nor have we for some years.

470 The document also referred to dust levels within the defendant's factories indicating the difficulties that had been experienced in reducing dust to the defendant's then target of 4 f/cc. The document concluded with a short summary of the regulations imposed by government authorities overseas and within Australia. It indicated that the defendant was aware of the regulatory regime in other countries and was monitoring developments locally.

471 According to Dr McCullagh's presentation, regulations relating to asbestos workers as a particular occupational group were first made in the United Kingdom in 1930 (exhibit 171). In his substance of expert evidence (exhibit 35), Professor Musk identified those regulations as the Asbestos Industry Regulations 1931, enacted following a report to Parliament based on the study by Merewether and Price. (Professor Musk gave an account of the development of regulations governing the use of asbestos in the United States of America, the United Kingdom and Australia in his substance of expert evidence; there was no crossexamination on that part of his evidence.)

472 Professor Musk stated that the first recommendation for a quantitative limit on asbestos exposure was made by Dreessen in 1938 (the report was referred to earlier in the reasons). An air concentration of 5 mppcf was recommended. That recommendation was endorsed by the American Conference of Governmental Industrial Hygienists in 1946. It appears that air concentration thresholds in the United Kingdom were only established by the regulations made in 1969. The 1931 regulations prescribed procedures that were designed to reduce exposure to asbestos but no target exposure level was specified. Professor Musk stated that the Dreessen standard was adopted by various public health authorities in Australia between 1938 (NSW) and 1951 (WA).

473 In 1961, the NHMRC published a schedule of recommended maximum concentrations of atmospheric contaminants for occupational exposures (exhibit 230). The recommended values were based on the threshold limits suggested by the American Conference of Governmental Industrial Hygienists. Consequently, the recommendation for asbestos levels was 5 mppcf. The introductory notes to the recommendation stated that the guidelines were intended to represent 'conditions to which, it is believed, workers except hypersensitive persons, may be exposed without adverse effects for 8 hours a day for 5 days in a week'. Dr McCullagh recommended in March 1966 that the aim of engineering control within the defendant should be to ensure that no person working in its factories was exposed to a level above 5 mppcf (exhibit 86).

474 In 1967, the Asbestosis Research Council published guidelines for the handling, working and fixing of asbestos and asbestos cement products in the building and construction industries (exhibit 99). The guidelines provided recommendations for work with those materials at building sites, including using dust extraction equipment or respirators when cutting material and dampening the material to avoid dust (similar recommendations were made by the Council at the same time for working with asbestos and asbestos cement products in the shipbuilding industry; see exhibit 102). The guidelines made no distinction between working with asbestos and asbestos cement products. Exhibit 142 indicated that the defendant possessed a copy of the guidelines.

475 In 1969, the Council published a recommended code of practice for the handling and disposal of asbestos waste materials (exhibit 191, tab 48). The code distinguished between different forms of asbestos waste. The identified forms included fine dust, loose fibre, swarf, small offcuts, floor sweepings; waste material from fixing or stripping of insulating materials containing asbestos; offcuts, broken pieces and reject material from friable materials and offcuts, broken pieces and reject material from high density products such as asbestos cement. Recommendations were made according to the different forms of waste material. Generally, it was recommended that fine dust, loose fibre and other forms of waste from which fibres could be easily released were to be collected in bags and other special receptacles. However, it was said that offcuts, broken pieces and rejects from asbestos cement products did not normally give rise to the emission of dangerous dust and in such cases it was not necessary that the material be placed in special receptacles.

(a) Asbestos waste, 'whether loose or in sealed bags or sealed receptacles, should be disposed of in such a way that no dust is admitted into the air during transport or in the act of tipping or subsequently'.

(b) Waste derived from blue asbestos should be contained in receptacles clearly marked to identify their contents.

(c) After use, all vehicles and containers should be cleared of loose fibre or dust.

(d) In the event of substantial accidental spillage, dusty material should be contained as quickly as possible by covering or wetting or both. Further, 'the spilled material should be removed as quickly as possible, safety precautions being observed according to the nature of the waste, and only those persons directly concerned with the removal permitted in the working area'.

(e) The waste should be deposited at a tipping site where, as was normal for the controlled tipping of solid waste, there was vehicular access to the tipping face so that the waste could be deposited at the face itself. Further, whenever practicable, the waste should be deposited at the foot of the tip face 'so as to minimise the need for further disturbance of the waste as the tip is formed, and so as to facilitate coverage with other suitable dry waste if such is also tipped'.

(f) All waste deposited should be covered with at least nine inches of consolidated earth or other suitable material capable of forming a seal to prevent subsequent interference and dispersal of dust. The covering of the waste should be promptly undertaken immediately in the case of waste derived from blue asbestos and no waste ought to be left uncovered at the end of a working day.

(g) Wet waste could be disposed of with dry waste but it had to be covered to prevent dust escaping from dried out material.

(h) It was accepted that waste from high density material such as asbestos cement was not likely to produce a dust hazard when tipped. However, a hazard might arise subsequently if the waste was subjected to pounding by vehicles passing over it. In general, therefore, the same method should be used to dispose of asbestos cement as was recommended for asbestos, although the requirements for daily covering could be dispensed with provided that the waste was covered as soon as practicable.

(i) Where the person responsible for disposing of the waste did not control the tipping site, the contract for its disposal should cover responsibility for ensuring the recommended precautions at the tip were observed. Periodic checks should be carried out to ensure that the recommended system of disposal was being followed.

477 Exhibit 232 was an extract from the report of the 68th session of the NHMRC held in May 1969. An appendix to the extract concerned atmospheric contaminants. Section 2 of the extract dealt with mineral dusts, including chrysotile and amosite asbestos. It recommended that the 'longterm, average fibre concentration of the air breathed by the workers should not significantly exceed four fibres per cubic centimetre of air' (page 14 of the extract). Section 3 concerned hygienic standards for short exposures. It stated that the concentration values given in the previous sections of the extract referred specifically to repeated daily exposures and each exposure was considered to be of up to eight hours' duration. It also stated that the toxicology of some of the more common atmospheric contaminants was being reviewed for the purpose of publishing progressively hygienic standards for short exposures. No standard was given for short exposures to asbestos dust. Those recommended standards were repeated in an annexure to the report of the 69th session of the NHMRC (exhibit 233).

478 In 1970, a 'rule' made pursuant to the Factories and Shops Act 1960 (Qld) was enacted for the processing and handling of asbestos and asbestos products in factories and shops and other premises (exhibit 225). The rule, known as the 'Asbestos Rule', drew no distinction between fibre types. The breadth and detail of the Rule should be noted; it clearly reflected a concern with minimising all occupational exposures to asbestos dust and fibre.

479 The Rule did not deal with the disposal of asbestos waste other than to provide that:

Loose asbestos and asbestos waste shall not be despatched from or as far as practicable received into a factory or shop except in suitable closed receptacles which shall prevent the escape of asbestos dust therefrom or shall not be distributed within a factory or shop except in such receptacles or in a totally enclosed system of conveyance.

Receptacles as provided under [the previous clause] ... shall be clearly marked with the words 'Asbestos - do not inhale dust'.

480 The report of the 72nd session of the NHMRC held in May 1971 incorporated as an annexure a recommended code of practice for handling consignments of asbestos fibre in Australian ports (exhibit 235). The recommended code commenced by stating that:

As long as there is any airborne asbestos dust in a work environment there may be some small risk to the health of persons exposed to the dust. Nevertheless, exposure up to certain limits can be tolerated for a lifetime without incurring undue risks.

481 The introduction continued by observing that there had been no recorded case of a waterside worker contracting asbestosis from his work but it was appreciated that apprehension existed among those who were engaged from time to time in such work. The code of practice had been developed to reassure workers and to eliminate any risk. The code was based on the code published by the Asbestosis Research Council in Britain. It included detailed recommendations for dealing with spillages of asbestos fibre. Those recommendations included wearing suitable protective clothing and respirators and vacuum cleaning. It was also recommended that facilities used for transporting asbestos should be regularly cleaned.

482 In 1972 and later, a working party of the NHMRC considered 'model' regulations for asbestos use (see exhibits 73, 169 and 188). Apparently, Dr McCullagh was a member of the working party. The plaintiff tendered copies of correspondence from Dr McCullagh concerning drafts of the regulations for two purposes: first, to demonstrate the concerns of the working party and second, to indicate 'how these regulations are made, how they are dissipated in strength in the process of industry interests and no doubt economic interests' (ts 1035). The correspondence indicated that:

(a) Dr McCullagh suggested amending a draft regulation concerning the disposal of waste material from requiring prompt covering with at least 15 cm of earth to providing that waste was to be disposed of 'in an approved manner at an approved site' (exhibit 169 and see exhibit 188). However, the explanation given for the change did not bear out the plaintiff's submission noted above. Significantly, the explanation did not suggest that Dr McCullagh disagreed with the gist of the draft (covering to a depth).

(b) The New South Wales Department of Industry and Labour proposed regulations in 1973. Dr McCullagh was critical of the proposed regulations as they did not distinguish between crocidolite and other forms of asbestos, the perceived risk being that producers of asbestos products who had not voluntarily banned the use of crocidolite would continue to use that form of asbestos. In reporting on the proposed regulations to the defendant's chief executive officer and other managers, Dr McCullagh observed that (exhibit 73):

It is not so much asbestosis, occurring in the old days after long and substantial exposure, but mesothelioma, so often occurring many years after trifling exposures, that engages the attention of the lay press. The overwhelming majority of cases of mesotheliomas are associated with crocidolite exposure.

483 In 1972, Dr McCullagh reported to the chief executive officer and other managers within the defendant about 'infactory asbestos in air standards' in the United States of America (exhibit 172). He noted that, 'it is still held that crocidolite has not been shown to be so much more dangerous than chrysotile that a separate standard is required for it there is the suggestion that chrysotile has been made to suffer in consequence'. The requirements were that exposure was to be limited to not more than 5 f/cc for an eight-hour weighted average for airborne asbestos, reducing to 2 f/cc from July 1976 (and see the discussion of regulations in the United States of America by Professor Musk in his substance of his expert evidence). At no time was the fibre count to exceed 10 f/cc. Further, 'asbestos waste must be disposed of [in] closed, impermeable, labelled containers'. It was not clear whether that requirement applied to raw asbestos waste or to all waste containing asbestos.

484 The NHMRC again published standards on atmospheric contaminants in 1975 (exhibit 234). The standards were approved at the 77th session of the Council (November 1973) and amended at its 79th session (November 1974). They remained the same as for the 1971 standards for exposure to chrysotile and amosite.

485 A code for the handling of asbestos by small users was approved at the 85th session of the NHMRC held in June 1978 (exhibit 236). The introduction to the code stated that:

Asbestos hazard is related to the dose of respirable dust, that is to say, very small particles inhaled by an individual. The actual amount of asbestos produced may therefore be of much less importance than the methods of handling and use which give rise to dust.

486 The code described the health risks associated with asbestos dust as asbestosis, lung cancer and mesothelioma. It stated that mesothelioma was not common but 'causes concern because recorded cases are believed to have resulted from relatively low exposures.' It was also said that mesotheliomas appeared to be much more frequently associated with exposure to crocidolite than to other varieties of asbestos and that in the opinion of most regulatory authorities, the level of exposure to crocidolite that could be regarded as nonhazardous was so low that it was not possible to achieve that level in a practical situation. Accordingly, on no account was crocidolite to be used for new work.

487 The implication from the code was that there was a nonhazardous level of exposure to chrysotile and amosite. However, it should also be noted that the code otherwise drew no distinction between the different types of asbestos. Consequently, the document also supports an inference that 'small users' of asbestos products containing chrysotile and amosite were exposed to a health risk in the opinion of the NHMRC. That required measures to be implemented to moderate exposure, including that workers were not to be unnecessarily exposed to excessive concentrations of asbestos dust so that all asbestos waste was to be disposed of either by permanent encapsulation (for example, incorporation in concrete products) or by tipping at an approved site. It recommended that waste be dampened if it was likely to generate dust during collection and disposal and when tipped, the waste be kept enclosed in a sealed impervious bag until such time as it was no longer accessible.

488 The NHMRC published a statement on health hazards associated with the use of asbestos in the construction industry in the following year (exhibit 237). The statement commenced by noting that mesothelioma could occur in the chest and abdomen many years after exposure to even small amounts of crocidolite. The statement continued, 'there may be some risk of this disease, though very much smaller than with crocidolite, associated with exposure to other forms of asbestos'. The statement noted also that there was concern regarding the adequacy of the current hygiene standards for asbestos dust in the workplace and that in the light of present knowledge, it was advised that:

(a) exposure to all forms of asbestos dust should be reduced to the minimum that was reasonably practicable; and

(b) in any case, occupational exposure to asbestos dust when averaged over a normal eighthour working day should never exceed 0.1 fibres per millilitre for crocidolite and 2 fibres per millilitre for amosite and chrysotile.

489 Those standards were 'believed to prevent the early signs of the appearance of asbestos in a normal working lifetime' but 'no hygienic standard for mesothelioma induction has been determined, especially for crocidolite and the concentration of this mineral which could be dangerous to health might be very small'.

490 The statement noted that crocidolite was not present in new building materials in Australia. In the case of products that contained chrysotile and/or amosite, 'the severity of the hazard depends on the concentration of fine fibres in the air inhaled by the worker and the time for which he inhales that concentration. Clearly, occasional low level exposures of short duration do not carry the same risk as does continuous work with asbestosbearing materials'. The statement advised that care should be exercised to avoid generating dust even when hand tools were used on asbestos cement products. Waste should be collected with an approved vacuum cleaner or the surface wet with water before sweeping. Rasping, planing and filing were to be avoided wherever possible.

491 In 1981, the NHRMC issued a code of practice for working with asbestos cement (fibrocement) building materials (exhibit 238). It contained recommendations for working with asbestos cement products and for waste disposal. The recommendations were designed to reduce exposure to all forms of asbestos dust to a 'minimum'. It was recommended that dust and swarf be disposed of in a labelled, impervious bag. The code noted that broken pieces and offcuts of asbestos cement products would not normally produce harmful quantities of dust and that all waste should be disposed of at a tip in a manner approved by the statutory authority.

492 Finally, the statements of evidence given by Dr McNulty in other matters (exhibits 243, 244 and 245) contained his views on the attitude of health authorities towards the risk of harm from exposure to asbestos in the 1960s and 1970s. It is not possible to conveniently summarise the evidence contained in those statements, other than to note that:

(a) In his proof of evidence that was exhibit 243, Dr McNulty suggested that in the mid1960s he would not have been concerned about a worker being exposed to a 'fairly heavy' episode of exposure to asbestos dust on a very occasional basis. However, that evidence must be viewed in the context of the very general and tentative statements contained in the proof of evidence and in the light of the evidence that Dr McNulty subsequently gave when crossexamined on his proof (exhibit 244). In crossexamination, he indicated that he had in mind persons who might only be exposed once in a lifetime (ts 579 of exhibit 244 and see at ts 601 and following).

(b) The matters concerning government regulation stated in the substance of evidence that was exhibit 245 were consistent with the history summarised in this section of the reasons.

(c) In his substance of evidence, Dr McNulty stated that he would not have regarded it reasonably foreseeable prior to 1974/1975 that a person who cut ten asbestos cement sheets with a handsaw could contract mesothelioma. That evidence must be considered in the context of the concerns he expressed following his visit to Castledare and the findings made about the extent of the plaintiff's exposure to asbestos dust and fibre during his visits to Castledare.

Dr McNulty's evidence and the alleged admission by Mr Palfreyman

493 The relevant part of the letter written by Dr McNulty to the defendant following his visit to Castledare in late 1972 was reproduced earlier in the reasons (exhibit 162B), as was Mr Moyle's observation that the way in which the waste material had been dumped did not comply with the Asbestosis Research Council's code of practice on waste disposal. That observation indicated that the health authority was aware of the code and apparently, regarded it as containing an acceptable standard of practice.

494 The import of Dr McNulty's comments in his letter to the defendant was obvious. It is to be noted that the defendant did not directly contest the effect of Dr McNulty's comments but rather, submitted in closing that it should be inferred that it had undertaken remedial work prior to the plaintiff's visits to Castledare. The defendant also contended that it was significant that Dr McNulty did not stipulate in his letter that the defendant cease dumping asbestos waste at Castledare. That contention is considered later in the reasons.

495 Mr Palfreyman wrote to the defendant's Western Australian branch manager following Dr McNulty's letter (exhibit 162A). The letter stated ' ... the doctor is concerned about several instances of poor dust control and housekeeping and in particular the possible health hazard created by the obvious good intention to try and help the Castledare Boy's Home in their several projects'. The plaintiff placed considerable weight on Mr Palfreyman's letter, characterising it as containing an admission (the reference to a 'possible health hazard') that 'settles the foreseeability issue' (plaintiff's closing submissions, page 144).

496 The letter apparently accepted Dr McNulty's concerns, although in language that was not unequivocal. That is significant but, in my view, the plaintiff's submission overstated the effect of Mr Palfreyman's letter as an 'admission'. It is, however, relevant that Mr Palfreyman did not dispute the possibility of a health hazard and it is important to note that the defendant ceased dumping asbestos cement waste at Castledare shortly after Dr McNulty's letter.

497 Mr Winters' record of his visit to Castledare in February 1971 has also been reproduced earlier in the reasons. The closing comments in the note regarding the disposal of waste material at Castledare read as though the concern was with adverse publicity. However, Mr Winters stated in his evidence that he did not regard Castledare as a suitable tipping site because of the possibility of children playing in, and inhaling, asbestos dust. That was the reason why he wrote in his note that dumping waste material at Castledare was 'unwise' (ts 587). That evidence was consistent with the concern expressed by Mr Winters at the meeting of the environmental control committee held on 29 March 1971 (exhibit 160). Mr Winters also agreed that the matters that caused him concern at the time he visited Castledare were known to him in 1968 (ts 587) and that children playing by throwing the asbestos waste at each other would involve an episode of 'substantial exposure' (ts 588).

498 Other aspects of Mr Winters' evidence were relevant in this context. He denied that the dumping could cause 'substantial exposure' but he added, 'in 197071 the exposure was 100 fibre years and the dumping of dust what occurred took no more than half an hour so I was - it was very, very high exposure for a very short period of time'. He accepted that standards at that time were concerned with asbestosis and stated that to his knowledge in 1970/71, the other types of commercially available asbestos were not linked with mesothelioma (ts 580).

499 Part of the crossexamination of Dr Gardiner was directed to statements made in the affidavit provided by Dr McNulty (exhibit 242). Dr Gardiner had read the affidavit in preparing his expert report.

500 The relevant part of Dr Gardiner's evidence is reproduced later in the reasons in the section concerning causation. However, in summary, Dr Gardiner stated that he considered that the concerns expressed by Dr McNulty at the time that he inspected the dumping of asbestos cement waste at Castledare and recorded in the affidavit were reasonable (ts 506). That was because he knew that 'exposed asbestos cement waste could give rise to intense and transient exposure'. He agreed with Dr McNulty's observations that it was unsatisfactory for young children to be playing in the asbestos cement waste and that it was inappropriate for the waste material to have been dumped in the way depicted in the photographs taken by him (ts 508). He agreed that the dumping was inappropriate as 'it gave rise to risks of inhaling sufficient quantities, even though transiently' and he added that, 'I think it's inappropriate for anyone of any age to be exposed to asbestos or any other carcinogen inappropriately. Yes, I'd be concerned, as anyone would'.

501 Mr Pickford gave evidence on the extent to which the asbestos industry appreciated the risk of harm from exposure to asbestos in the 1970s based on his experience as an industrial hygienist who had entered the 'asbestos field' in 1972 and from his knowledge of research publications, regulations and industry guidelines (exhibit 72). He stated that in his opinion 'there was an informed awareness in Australia in the period up to approximately 1970 that the risk associated with asbestos cement sheeting dumped on land was nonexistent'. He considered that the 'most informed group of scientists, academics and the like, all held the view upon the data available in that period that all asbestos diseases were believed to be caused by heavy exposure to airborne asbestos fibres over many years in an industrial setting where asbestos was being mined, milled or processed'. He stated that to his knowledge the defendant transported large quantities of asbestos cement waste to hundreds of building and development sites as 'valued fill' in the early 1970s and that asbestos cement was 'allowed into council and waste depots without precautions'. Asbestos cement contamination of land as a consequence of that practice was not seen to be a problem; 'in fact, it was believed in those days that all asbestos diseases were caused by heavy exposure over many years within the asbestos related industries'. It was only from about 1988 onwards that there was concern expressed by authorities over soil contamination from dumped asbestos cement.

502 Mr Pickford's evidence included a very brief literature 'perspective' in which he stated that many field studies had shown the absence of detectable airborne asbestos fibres from activities conducted on soil contaminated with asbestos cement. Those studies were not further identified. He also stated that asbestos cement was not a friable material and the vast majority of asbestos cement left in the ground that he had inspected showed little evidence of degradation. He noted that according to the information recorded in the survey of asbestos waste tips compiled by Mr Winters in June 1972 (exhibit 70), the airborne concentrations of asbestos fibre detected at Castledare were less than the NHMRC 'standard of the day' of 4 f/ml.

503 It is not necessary to summarise the detail of the crossexamination of Mr Pickford on those matters, except to note the following points.

504 Mr Pickford clearly accepted that it was necessary for asbestos waste material to be covered after it had been deposited at a disposal site; see for example, at ts 644 645 and 656 657. He stated that it was 'fairly obvious that you should cover waste asbestos to stop it being airborne' (ts 656). In that context, he explained the evidence given in his expert report as referring to his perception of community and industry standards in the early 1970s. However, he accepted that he knew that by at least April 1973, the Environmental Protection Agency in Victoria had recommended that asbestos waste should be covered within hours or days (ts 692) (and see exhibit 160). That was to ensure that members of the public were not exposed to asbestos dust (ts 693). Further, exhibit 74 was a memorandum dated 12 July 1974 prepared by Mr Pickford while he was employed by Wunderlich. The memorandum was entitled, 'Asbestos dust comments on Wunderlich situation' and under the heading, 'Future action required', Mr Pickford recommended that Wunderlich 'ensure that waste asbestos dust and off cuts are not left exposed in tips. Nontoxic fill should cover our waste'.

505 Mr Pickford also accepted that it was desirable that asbestos waste material be monitored following dumping to ensure that any covering was not disturbed by, for example, weather (ts 668). Consistent with that view, he indicated that the dumping of asbestos waste at a site that was not an 'official tip' would have been a matter of concern for him when he was working at Wunderlich as 'anything uncontrolled is not a good idea' (ts 683).

506 It is convenient to make findings about Mr Pickford's evidence at this point.

507 I do not accept his statements regarding the state of industry and medical and scientific knowledge about the risk of harm from exposure to asbestos in the early 1970s. The statements were expressed in very general terms and were not substantiated by the limited literature survey that was provided. The statements were inconsistent with the medical and scientific research that has been earlier reviewed and with documents recording the defendant's own understanding of the effect of that research.

508 I also do not accept the general effect of his evidence that government authorities and participants in the asbestos industry were unaware of or unconcerned by the risk of harm from exposure to asbestos cement waste in the 1970s and later. That evidence was inconsistent with Mr Pickford's recommendation made in 1974 to Wunderlich, his own knowledge of the recommendations of the Environmental Protection Agency in Victoria and his oral evidence about the need to cover waste to prevent members of the public being exposed to asbestos dust (see, in particular, at ts 663). It was also inconsistent with the defendant's policy on the disposal of waste, the Asbestosis Research Council's code of practice that was published in 1969 and the Asbestos Rule.

509 Exhibit 114 was a memorandum dated 18 December 1967 from the Branch Works Manager, Brisbane Office of Wunderlich Limited to 'the finance director'. The memorandum was entitled, 'Asbestosis' and commenced by indicating that the purpose of the memorandum was to bring to the attention of the finance director the growing concern about asbestosis and to recommend that the company urgently develop a policy to 'cope' with the problem. As previously noted, the defendant objected to the tender of the document as going to its knowledge. I accept that objection.

510 However, the document is, in my view, relevant in one respect. It is apparent from the document that Wunderlich were involved in the manufacture of asbestos products. Although the document was concerned with asbestosis, it is plain that the author was worried about adverse publicity about the effects of exposure to asbestos that may not have been confined to asbestosis. In any event, the memorandum identified as a 'hazard' of asbestosis the 'growing evidence to suggest that the hazard is not confined to employees only, but may possibly be present for employees' families, local residents and even users of the product'. Further, the memorandum made various suggestions for tackling the problems that were identified, including 'immediate consideration to the possibility of investigating the use of a substitute for asbestos fibre in our products'.

511 As with exhibit 114, there was no evidence as to when and how Mr Pickford's memorandum of July 1974 (exhibit 74) came into the defendant's possession and it was not received into evidence as forming part of the defendant's actual knowledge. In my view, the relevance of the document was that it disclosed the views of another person in the asbestos industry at the time that the memorandum was written who was independent of the defendant.

512 Section 8 of the plaintiff's closing submissions was directed to the defendant's pleaded denial of allegations made in par 6 of the statement of claim that it knew or ought to have known that it was unsafe for asbestos cement waste to be used for purposes such as making roads and that 'asbestos or asbestos containing waste should only be disposed of in tightly controlled circumstances in which it was safely and deeply buried and other steps taken to ensure that it could not become airborne and/or inhaled'. It is helpful to collate and separately identify the evidence relied on by the plaintiff in support of that allegation:

(a) The defendant's 'waste disposal policy' (exhibits 136 and 144). It should also be noted that a decision to monitor to waste asbestos dusts was taken at the inaugural meeting of the Environment Control Committee in January 1971. Dust control and the disposal of waste was an item routinely considered by the committee (exhibit 160). At around this time the defendant developed a procedure for disposing of the asbestos bags in which raw asbestos was delivered to its Camellia factory (exhibit 163). The environmental control committee minutes for April 1973 recorded that Mr Pickford had reported that the Victorian Environmental Protection Authority had suggested that waste material be covered within hours or days (exhibit 160) (presumably, the report by Mr Pickford was to one of the members of the Committee).

(b) The Asbestosis Research Council's recommended code of practice for the disposal of asbestos waste materials (exhibit 191, tab 48) and evidence provided by other guidelines such as those suggested in the United States and discussed in Dr McCullagh's report to management in 1972 (exhibit 172) and the Asbestos Rule.

(c) The evidence given by Dr McNulty, Mr Winters and Dr Gardiner. That evidence was also to be considered in the context of the contemporaneous documents concerning Dr McNulty's inspection at Castledare, Dr McCullagh's comments on Mr Winters' February 1971 report on industrial hygiene at Welshpool and Rivervale (exhibit 67, in which Dr McCullagh stressed the need to immediately cover the waste material with 'the ashes that are used for this purpose') and the note recorded in the minutes of the 29 March 1971 meeting of the Environmental Control Committee that 'prompt covering' was important for the waste material deposited at Castledare (exhibit 160).

(d) Mr Pickford's memorandum of July 1974 (exhibit 74).

(e) An inter-house letter written by Dr McCullagh on 24 September 1974 to various senior managers of the defendant (exhibit 189). The subject of this letter was a general survey of industrial hygiene in the defendant's New South Wales factories. The letter has not been previously referred to in the reasons but in summary, it stated that the practice of tipping wet waste on dry was a sound practice and that 'all waste so tipped should be promptly covered'. The letter continued:

It would be better to tip all waste wet but it was estimated that this would cost an additional $13,000 a year, while our dry waste is accepted without charge. So long as airborne asbestos levels made during the tipping of dry waste remain satisfactory, and wet waste is tipped on top of dry and the site of tipping is sufficiently remote from human habitation our present practice may be regarded as satisfactory.

The letter also referred to a road that had been constructed at a tip from dry waste sourced from the defendant. It was said that the road was approximately 5 km from human habitation and had since been covered. Dr McCullagh stated that the practice was 'unsound and we should do all we can to discourage it'.

513 There was no direct evidence that the defendant actually knew of the recommended code of practice for the disposal of asbestos waste materials published by the Asbestosis Research Council in 1969. However, I infer that the defendant did know of the code from the following matters:

(a) Its membership of the Council and the fact that it was aware of other codes published by the Council around this time.

(b) The apparent prominence of the Council in the asbestos industry. That is evidenced by the defendant's application to join the Council and the references to its publications and research in the defendant's documents.

(c) The fact that Dr McCullagh and others were closely monitoring regulatory and related developments in the asbestos industry internationally (the extent of Dr McCullagh's research interests and connections with those undertaking research into asbestosrelated diseases was apparent from the bundle of correspondence comprising exhibit 229). That is evident from the minutes of the environmental control committee. The committee was established in January 1971 but it is evident from the documents tendered by the plaintiff that Dr McCullagh carefully reviewed the research and associated literature prior to that time (including in relation to asbestos cement products see exhibit 113).

514 If I am wrong in finding that the defendant actually knew of the code, I find that it ought reasonably to have known of its existence and obtained a copy and that knowledge of its recommendations should be imputed to the defendant. I make that finding having regard to the following matters (considered in the light of the observations of Allsop P in Stavar [30] and [123] and Ipp J in McPherson's Ltd):

(a) the defendant's position as a manufacturer of asbestos cement products that at the relevant time operated a number of factories across Australia;

(b) the fact that the defendant's production processes generated asbestos waste that it was responsible for collecting, handling and disposing of at sites to which its employees and others had access;

(c) the evident prominence of the Asbestosis Research Council in the asbestos industry and the defendant's membership of the Council;

(d) the defendant's knowledge by 1970 of the risks of harm from exposure to asbestos dust and fibre.

515 There was no direct evidence on why the defendant decided to cease using crocidolite. However, the evidence as a whole supports an inference that the decision was made because the defendant accepted that medical and scientific research had demonstrated a relationship between exposure to crocidolite and mesothelioma. The inference is drawn primarily from the timing of the decision. It is also consistent with concerns expressed by Dr McCullagh sometime later that regulations should expressly prohibit the use of crocidolite and with an entry in the minutes of the environmental control committee in April 1973 that the defendant had written to other manufacturers in the asbestos industry at the time that it ceased using crocidolite to advise that they should do likewise (exhibit 160).

516 A second inference can be drawn from the decision: that the dose at which there was a risk of employees contracting mesothelioma was considered to be below whatever level of exposure the defendant could achieve in its factories by its dust control measures. It is also relevant to note that there was no direct evidence that the defendant ought reasonably to have ceased using crocidolite some time earlier than when it actually made the decision.

517 It has been found that the defendant actually knew of the relationship between exposure to asbestos and mesothelioma by no later than May 1965. The documents relied on to make that finding did not refer to any particular fibre type. I further find that:

(a) by 1960, the defendant was aware that occupational exposure to asbestos was associated not only with asbestosis but also with lung cancer and that all commercial fibre types were implicated in those diseases; and

(b) by the early 1960s, the defendant appreciated the need to control dust levels in its factories to reduce health risks to its employees from exposure to asbestos.

The defendant's knowledge between the mid1960s and June 1968

518 The most significant developments between late 1964 and June 1968 were the convening of the New York Conference and the publication of the studies by Drs Newhouse and Thompson and Drs Selikoff, Churg and Hammond. I find that the defendant knew about the matters summarised earlier in the reasons from Dr McCullagh's notes of the Annals. I also find that the defendant knew about the studies by Drs Newhouse and Thompson and Drs Selikoff and Hammond by no later than March 1966 when Dr McCullagh made his notes.

(a) By June 1968, the defendant had accepted that a relationship between exposure to asbestos and mesothelioma had been demonstrated. That was evidenced by Mr Page's memorandum of May 1965 (exhibit 56), Mr Pysden's advice to JB Reid in February 1966 (exhibit 59), Mr Pysden's memorandum of June 1966 to HC Hadgrove (exhibit 92), Dr McCullagh's presentation to the July 1966 factory managers' conference (exhibit 193), the minutes of the July 1967 factory managers' conference (exhibit 103), Dr McCullagh's letter to Mr Major in March 1968 (exhibit 127) and the defendant's decision to cease using crocidolite as a constituent of its products (it is also implicit in Dr McCullagh's report of the Dresden Conference (exhibit 135)). There were very occasional references in the defendant's contemporaneous documents indicating some doubt about the relationship between asbestos exposure and cancer (for example, Mr Cohen's comment about John Manville's view of the relationship in his report of late 1966 to Mr Gilbert (exhibit 96) and parts of Dr McCullagh's notes on the Annals (exhibit 61)). However, the documents indicate that generally the effect of the studies by Dr Doll, Dr Wagner and Dr Selikoff and their colleagues was accepted by the defendant. The concern expressed in some of the defendant's contemporaneous documents about the possibility of government regulation indicates that it was aware that the research findings were sufficiently well established and accepted as being likely to prompt government intervention.

(b) The defendant knew by June 1968 that there were aspects in the relationship between asbestos exposure and cancer and in particular, mesothelioma, that were unknown. For example, it was not known whether there was a safe level of exposure. However, the defendant was aware that there were suggestions that mesothelioma could be contracted as a result of exposures that were 'quite small and quite remote in time' (Dr Gandevia's letter dated 2 February 1965 to Mr Pysden (exhibit 65)); that a 'brief and light exposure to asbestos might cause mesothelioma' (Dr McCullagh's note on the Annals (exhibit 61)); that 'lighter' exposures could cause cancer (Dr McCullagh's presentation at the June 1966 factory managers' conference (exhibit 193)); and that a 'single, heavy exposure' to asbestos dust might cause lung cancer many years later (newspaper article attached to Mr Page's memorandum of February 1965 (exhibit 56); and see the references in the plaintiff's closing submissions, page 178 and following). The defendant was aware of suggestions made as early as 1965 that 'one particle acting on one cell may start a mesothelioma' (which appears to be a very early reference to the 'single fibre' theory of the aetiology of mesothelioma; exhibit 56).

(c) The defendant also knew that the question of whether all commercially used fibre types could cause mesothelioma had not been settled. Mr Pysden's advice to JB Reid in February 1966 (exhibit 58) and Mr Page's memorandum to Mr Gilbert of April 1966 (exhibit 89) indicated that they understood that the question of whether exposure to other types of asbestos was implicated in asbestos induced cancers remained open. That was also consistent with what Dr McCullagh recorded in his note on the Annals (exhibit 61) and his report on the Dresden conference in May 1968 that noted that further research was being undertaken into the relationship between chyrsotile and mesothelioma (exhibit 135). The contemporaneous record provided by the documents to which I have referred is to be preferred to Mr Winter's attempts to recall his state of knowledge in 1970/71 concerning whether chrysotile and amosite were implicated as possible causes of mesothelioma. That is especially as no attempt was made to systematically establish the basis for and extent of his knowledge, apart from identifying him as an industrial hygiene engineer in the 1960s/1970s.

(d) The defendant also knew that there was concern about the risk of persons living in proximity to asbestos processing factories contracting mesothelioma. It was aware that the possibility of such a risk was controversial (see Dr McCullagh's notes on the Annals) but there was a respectable body of opinion expressing concern and the need for further research (see, for example, exhibits 87, 93 and 135).

520 I also find that the defendant knew by June 1968 that the risks associated with exposure to asbestos dust were relevant to the disposal of asbestos waste. The minutes of the June 1968 factory managers' conference (exhibit 136) and Mr Gilbert's memorandum of November 1968 (exhibit 144) do not expressly link what was described in each of those documents as being 'company policy' on the disposal of waste material with a recognition that asbestos cement waste posed a hazard. However, I consider that inference should be drawn having regard to:

(a) The content of the policy, including the prohibitions on providing asbestos waste to factory employees and not using waste material to create hard standing areas within the defendant's factories except when covered with another hard wearing topping so as to completely seal the surface;

(b) The positioning of the statement of the defendant's policy on the disposal of waste material in the section of the minutes of the 1968 factory managers' conference dealing with industrial hygiene. The final statement in that section of the minutes linked the problem of dust contamination with market acceptance of products containing asbestos fibre (and so connected the problem with media publicity concerning the risks of exposure to asbestos of the kind referred to in the minutes of the 1967 factory managers' conference (exhibit 103)).

(c) The heading of Mr Gilbert's memorandum to W Williams, which was 'industrial hygiene'.

(d) The defendant's then knowledge of the risks of exposure to asbestos dust and fibres and in particular, the possibility that mesothelioma could be caused by 'slight' or 'light' exposures.

521 It is to be noted that the defendant's policy regarding disposal of waste material was made at a time when it had ceased or almost entirely ceased using crocidolite. The concern with controlling the disposal of waste material was apparently not allayed by the fact that the waste was generated from manufacturing asbestos cement products contained chrysotile and amosite and not crocidolite.

522 It is also relevant that by June 1968, the defendant was aware of a view among those concerned with research into asbestosrelated diseases and occupational hygiene that any unnecessary exposure to asbestos dust was undesirable - see for example, the overview of the New York Conference by Dr Gilson, the reference in Dr McCullagh's notes on the Annals to there being no safe upper limit for exposure and 'any fibre was dangerous', the views expressed by the director of occupational health division of the New South Wales Department of Health in about April 1966, Dr McCullagh's statement at the 1966 factory managers' conference that 'any exposure was dangerous' and note also, Mr Page's draft response to the inquiry from the New Zealand Post Office (October 1968). The concern about any exposure to asbestos must be put into a proper perspective. The defendant's decision to cease using crocidolite appears, on the evidence, to have been in advance of any government regulation and well ahead of at least some others in the asbestos industry. There was no evidence suggesting that at this time it ought to have been considering eliminating the use of amosite or significantly altering its production processes. However, the desirability of avoiding unnecessary exposure to asbestos may be significant when considering whether the defendant ought to have agreed to dispose of asbestos waste at a site such as Castledare and at a time when there were alternative disposal sites that it used.

The defendant's knowledge between mid1968 and 1973

(a) The defendant was aware by about 1972 that it was likely that there was a variable relationship between fibre type and the risk of contracting mesothelioma. However, the defendant also knew that medical and scientific research indicated that amosite and chrysotile could cause mesothelioma: see exhibits 154, 187 and 190.

(b) Dr McCullagh rejected the possibility that exposure to ambient asbestos could be harmful. There was no evidence to suggest that his view was not shared by the rest of the senior management of the defendant. However, Dr McCullagh's comments on the subject obviously indicated that there was a body of scientific and public opinion that either held the contrary view or was not willing to dismiss the possibility that mesothelioma could be caused by exposure to ambient asbestos.

(c) There was no change in the defendant's knowledge and appreciation of the risks of harm from exposure to asbestos in the period 1968 to 1973 that significantly altered the understanding it possessed by June 1968.

524 I have further found that the defendant knew or ought to have known of the code of practice for the disposal of asbestos waste published by the Asbestosis Research Council. I also find that it knew that the disposal of waste material had become a concern for government authorities by about 1970, as evidenced by the 'Asbestos Rule' and shortly after, the proposal to regulate waste disposal in the model regulations that were being developed by the NHMRC (Dr McCullagh's proposed amendments required waste to be disposed of in 'an approved manner at an approved site' (exhibit 169)). It was aware of the attitude of the Environmental Protection Agency in Victoria by April 1973.

Was a duty of care owed? Was a duty owed from June 1968?

525 In my view, the defendant owed a duty to exercise reasonable care in disposing of asbestos cement waste generated by its Welshpool factory in the period from June 1968. The content of that duty was to take reasonable steps to avoid persons being exposed to respirable asbestos fibres from the disposal of its asbestos cement waste. Those findings reflect the application of my understanding of the legal principles discussed earlier. Four points should be noted about the formulation of the duty.

526 First, the duty is not expressed to be a duty to exercise reasonable care in disposing of asbestos cement waste at Castledare. A duty formulated in those terms would exclude from consideration the threshold question of whether the defendant ought to have dumped waste material at Castledare at all.

527 Second, the duty is specifically formulated by reference to asbestos cement waste generated at the Welshpool factory. That grounds the duty in the actual circumstances of the plaintiff's claim notwithstanding the higher level of abstraction at which the question of duty is to be considered. The question of whether a duty was owed should be answered by reference to the actual source and composition of the waste material for the reasons that have already been given.

528 Third, the duty is formulated by reference to the time at which it has been found that the waste was dumped at Castledare (June 1968 is the earliest possible date from which the defendant could have commenced dumping asbestos waste at Castledare on the findings that have been made). Whether a similar duty was owed prior to June 1968 is considered at the end of this section of the reasons.

529 Fourth, the content of the duty is directed to the possibility of persons being exposed to asbestos dust and respirable fibres from the disposal of the defendant's waste material. Again, that grounds the duty in the facts of this case. Further, although the duty refers to avoiding exposure to dust and respirable fibres, the emphasis is on steps that were reasonable. It is accepted in the formulation of the duty that it might not have been reasonably practicable to eliminate the possibility of exposure; although the duty was to take reasonable steps to avoid exposure, the practical effect of discharging the duty might have been to only minimise exposure. The duty has been formulated in terms of exposure rather than avoiding injury because the risk of harm from asbestos is through exposure to respirable asbestos fibres or by ingestion of fibres.

530 It has been found that the waste material included a substantial amount of fine dust. Consequently, it was obvious that persons could be exposed to respirable asbestos fibres through the defendant's disposal of the waste. That is relevant to both the formulation of the duty (that there were persons who the defendant ought reasonably to have had in contemplation in undertaking the activity of waste disposal) and to the determination of the class of persons to whom the duty was owed.

531 I regard the class of persons to whom the duty was owed is to be defined by the reasonable foreseeability of:

(a) direct contact with the asbestos cement waste that was to be disposed; and

(b) proximity to the asbestos cement waste during and following its disposal.

532 The persons who might come within a class defined by those parameters would depend on the actual means employed to dispose of the asbestos cement waste, the location of the disposal site and the circumstances in which the waste was disposed. The first category of persons would include workers handling the asbestos cement waste at the Welshpool factory, drivers involved in transporting the waste to a disposal site and those working at the site (those are persons who were clearly contemplated by the Asbestosis Research Council's code of practice on the handling and disposal of asbestos waste (exhibit 191, tab 48)). It might include members of the public who had access to the disposal site depending on the manner in which the waste material was disposed of at the site.

533 It is more difficult to identify precisely who would come within the second class of persons on the evidence adduced in this matter. For instance, there was only limited evidence about the distance that the asbestos dust and respirable asbestos fibres were likely to travel following dumping. There was evidence that amosite was a dustier form of asbestos than chrysotile and that amosite fibres tended to hang longer in the air than chrysotile fibres. However, there are obviously questions of indeterminacy of class that would require careful consideration if the facts of this matter were different.

534 The finding that as at June 1968 the defendant owed a duty of care to exercise reasonable care in disposing of asbestos cement waste generated at the Welshpool factory rests, in part, on two further findings:

(a) It was reasonably foreseeable that there was a risk of personal injury from exposure to asbestos cement waste, in particular a risk of persons contracting mesothelioma, if the defendant did not use reasonable care in disposing of the waste material. That conclusion is based on the findings that have been made about the state of medical and scientific knowledge as at mid 1968 about the risk of harm (in particular, the risk of contracting mesothelioma) from exposure to asbestos dust and fibres.

(b) The defendant knew that this risk was a reasonably foreseeable consequence of a failure to exercise reasonable care in disposing of its waste material. That conclusion is based on the findings that have been made concerning the defendant's actual and imputed knowledge as at June 1968.

535 The relationships between dose, fibre type and the risk of contracting mesothelioma are central to those findings it was accepted by mid1968 that 'slight' or 'brief' or 'light' non-occupational exposures to crocidolite could cause mesothelioma. It was not known whether such limited exposures to other types of asbestos could also cause mesothelioma but medical and scientific research had not rejected that possibility. Those matters were known to the defendant. Consequently, the finding that a duty was owed is based, in part, on the intermediate findings that have been made about what was unknown or uncertain about the relationship between exposure to asbestos and mesothelioma given what was known and the defendant's knowledge of the areas of uncertainty.

536 The following matters ('features') are also relevant to the finding that the defendant owed a duty of care:

(a) The waste material was a byproduct of the defendant's manufacturing activities at its Welshpool factory. As a matter of policy, it is reasonable to impose the duty as the defendant created the waste material as part of a process that it devised and from which it derived an economic benefit.

(b) The defendant had control over the disposal of the asbestos cement waste as it was a product of its activities. Moreover, it actually assumed control over the disposal of the waste material that is, it decided where to dispose of the waste and by doing so, the manner in which it was to be disposed. Further, it had developed some policies regarding waste disposal by June 1968. Again, those matters indicate that it is reasonable to impose a duty of care.

(c) The risk of harm was neither remote nor fanciful, notwithstanding that the defendant had ceased using crocidolite at its Welshpool factory by mid1967 and that the waste material was generated from manufacturing asbestos cement products. Again, the defendant's policy on the disposal of waste material must be taken to have acknowledged that risk as the policy was developed after the decision to cease using crocidolite had been taken and at a time when the defendant had either stopped using that type of asbestos or its use had almost entirely ceased. In any event, the risk was such that reasonable care was required as, to the defendant's knowledge:

(i) there were people who would possibly be exposed to respirable asbestos fibres from the waste material having regard to its composition;

(ii) the extent of possible exposure would be affected by the manner in which the asbestos waste was handled during disposal and the steps taken on disposal;

(iii) no safe level of exposure to asbestos dust and respirable asbestos fibres had been demonstrated;

(iv) amosite and chrysotile were apparently implicated as causes of mesothelioma even if they were less toxic than crocidolite;

(v) the relationship between fibre type and dose and mesothelioma was uncertain and subject to continuing research;

(vi) mesothelioma was incurable and fatal (the analysis of the questions of duty and breach must, of course, reflect the nature of the harm; the magnitude of the risk might be small but the harm was absolute);