Australia: Dust Diseases – Evidence & Expert Witneses

In BI (Contracting) Pty Limited v University of Adelaide [2008] NSWCA 210, the NSW Court of Appeal reaffirmed that its role is not to disturb findings of fact made by primary judges. The Court also confirmed that expert witnesses who were not practising at the time of an alleged tort, can still give opinion evidence on what the acceptable standard or knowledge was at the time of the alleged tort.

Facts

In 1961, the plaintiff, Professor Rowley was a member of staff at the University of Adelaide's Faculty of Medicine.

At that time construction work was being carried out on the Medical School at the Adelaide campus.

The appellant, BI (Contracting) (BIC) had been subcontracted by the University to fireproof structural steel beams. This work involved spraying the beams with a mixture consisting of amosite asbestos, chrysotile asbestos, cement and a bonding agent.

Professor Rowley inspected the construction works on an occasion when BIC was fireproofing the structural beams.

Many years later Professor Rowley developed mesothelioma. He commenced proceedings (in the Dust Diseases Tribunal of New South Wales) against the University and BIC, contending he had contracted mesothelioma from his exposure on the occasion of his inspection. Professor Rowley subsequently discontinued proceedings against BIC. The University issued a crossclaim against BIC seeking contribution for the damages and costs paid to Professor Rowley.

Professor Rowley's claim against the University resolved for the sum of $250,000 plus costs. Costs were subsequently agreed at $120,000.

The contribution proceedings were heard in late 2006 before Judge Kearns.

Judge Kearns found BIC was liable to contribute 35% towards Professor Rowley's damages and costs.

BIC appealed on the question of liability and the amount paid by the University in relation to Professor Rowley's costs.

Grounds of Appeal

BIC appealed on a number of grounds, namely that Judge Kearns erred when he:

• Admitted the evidence of Geoffrey Pickford, Alan Rogers, James Leigh and David Kilpatrick. BIC submitted the evidence of these experts should not have been characterised as 'opinion evidence as to the state of medical knowledge in 1961' because it did not satisfy the requirements of section 79 of the Evidence Act 1995 (NSW).

• Admitted into evidence the Victorian statutory instruments, namely the Harmful Gases, Vapours, Fumes, Mists, Smokes and Dust Regulation 1945 (Vic) and the Declaration of Certain Trades to be Dangerous Trades within the Health Act 1928 (Vic).

• Found BIC owed a duty of care to Professor Rowley.

• Found BIC breached any duty of care, or alternatively, Judge Kearns failed to give adequate reasons for that finding.

• Held that the University had established an entitlement to contribution towards the $120,000 that it paid in compromise of Professor Rowley's claim for costs.

• Found Professor Rowley had been exposed to concentrations of asbestos dust and fibre 'well in excess' of 5 mppcf.

Grounds of Cross-Appeal / Notice of Contention

The University filed a Notice of Contention seeking to have the decision of Judge Kearns affirmed on the following bases:

• His Honour found the exposure to asbestos dust and fibre experienced by Professor Rowley exceeded 5 mppcf or the recognised Dreessen standard.

• The content of the duty of care owed to Professor Rowley by BIC included compliance with the Dreessen standard.

• The breach of the Dreessen standard amounted to a breach of BIC's duty of care.

The University cross-appealed from Judge Kearns's apportionment of responsibility for Professor Rowley's injury as between it and BIC.

Judgment of the Court of Appeal

Appeal

Ground 1 (the evidentiary challenge)

BIC submitted that witnesses who were not practising in the field at the time Professor Rowley was exposed, were unable to give evidence of the state of knowledge in 1961 or of what an appropriate expert might advise as to safety at that time.

Judge Kearns had rejected this submission and allowed the evidence. He was of the view that to accept BIC's submission would have the implication that in the case of an event at a time where no practising expert was alive, a person who later became an expert could not give evidence of an earlier state of knowledge based on his learning.

The Court of Appeal found it was not an error to hold that experts who qualified after 1961 were able to give evidence of the state of knowledge within their specialty in 1961, based on a review of the literature as it stood then.

Although specific parts of the oral evidence which had been admitted, were not according to the Court of Appeal, admissible, the Court of Appeal dismissed that ground of appeal, because:

• The evidence had not been objected to in the primary proceedings.

• Judge Kearns had not been asked to rule on the admissibility of such evidence.

Ground 2 (the Victorian statutory instruments)

BIC submitted that the Victorian statutory instruments which had been admitted into evidence by Judge Kearns should not have been admitted. BIC disputed the relevance of these documents to the state of medical knowledge bearing on the perceived risk to a person such as Professor Rowley.

Again, the Court of Appeal noted:

• The tender had not been the subject of objection.

• Judge Kearns had not been asked to rule on those documents' admissibility.

In any event, the Court of Appeal found the statutory instruments were relevant in considering the question of foreseeability of risk to a bystander subjected to asbestos spraying for a period of five to ten minutes.

Ground 3 (duty of care)

BIC submitted it was not open to conclude that in 1961 it had been foreseeable to BIC that a bystander exposed to asbestos dust and fibre for a period of five to ten minutes was at risk of contracting lung disease.

BIC relied on the Court of Appeal's decision in Seltsam Pty Ltd v McNeill [2006] NSWCA 158 (McNeill).

The Court of Appeal distinguished this case from McNeill. Like Judge Kearns, the Court of Appeal found the main distinction was that Professor Rowley, albeit a bystander, had been exposed for a short period to high concentrations of asbestos in an industrial setting.

McNeill however, had been an end-user of asbestos cement sheeting in a domestic setting. In McNeill, the Court of Appeal had found the evidence was not capable of establishing that there was in 1961 a foreseeable risk of injury to a casual, one off, user of asbestos cement sheeting.

The Court of Appeal found Judge Kearns did not err in his finding of foreseeability. The Court of Appeal found that BIC's knowledge as an informed participant in 1961 included that asbestos was known to be toxic in sufficient quantities and that no level was known to be safe. By 1961, it was known that there were cases of mesothelioma attributed to relatively light exposure to asbestos. It was also recognised that intermittent exposure to asbestos of short duration may be dangerous.

In those circumstances it was open to Judge Kearns to find it was foreseeable to BIC in 1961 that a person exposed to its asbestos spraying operation for a short duration was at risk of lung disease.

Ground 4 (breach of duty)

BIC submitted there was no evidence which properly supported a finding of breach of any duty of care, or alternatively, Judge Kearns failed to give adequate reasons for that finding.

Judge Kearns had noted BIC could have taken a number of simple steps to avoid Professor Rowley's exposure to asbestos dust. These steps were:

• Preventing Professor Rowley from gaining access to the site where it was conducting its spraying operation.

• BIC could have placed an obvious sign warning of its operation, that it was dangerous to health and could be potentially lethal.

• The spraying process could have been sealed off at low cost.

The Court of Appeal found Judge Kearns did not err when he found BIC was negligent by failing to take one or more of the above steps.

Ground 5 (liability for Plaintiff's costs)

BIC submitted Judge Kearns had erred when he held the University had established an entitlement to contribution towards the $120,000 it had paid to Professor Rowley for costs.

BIC submitted that although the amount paid was reasonable, there was no proof that Professor Rowley had actually been liable to his solicitors for those costs, particularly as there was no costs agreement or other evidence to establish the existence of a legal obligation on Professor Rowley to pay his costs.

The Court of Appeal found it was open to Judge Kearns to find that Professor Rowley was under a legal obligation to pay his solicitors' costs. This was on the basis Judge Kearns could reject, as inherently improbable, the scenario that the solicitors had an agreement to undertake Professor Rowley's legal work in connection with the proceedings for no reward.

Ground 6 (exposure to asbestos dust and fibre in excess of 5 mppcf)

BIC submitted Judge Kearns erred when he admitted the opinion evidence of Professor Henderson because it was not an opinion wholly or substantially based on his specialised knowledge.

BIC also submitted that regardless of whether the opinion evidence was admissible, it was properly supported by evidence.

The Court of Appeal found it was open to Judge Kearns to find that asbestos was the predominant component of the spray being used by BIC. This was a finding of fact which the Court of Appeal was not authorised to overturn.

The Court of Appeal considered this finding to be robust and the contention that there was no evidence to support to factual finding was unsustainable.

Notice of Contention

The Court of Appeal noted it was not authorised to make findings of fact on an appeal from the Tribunal.

The Court of Appeal rejected the University's Notice of Contention because in its view, the Notice of Contention involved defining the content of the duty in specific terms. This would involve mixing a question of law (whether a duty existed) with a question of fact (whether a breach occurred).

Cross-Appeal

The University had submitted the contribution by BIC of 35% was not sufficient. Judge Kearns had stated:

The Court of Appeal found Judge Kearns did not err when he took into account that Professor Rowley had inquired of the University's architect whether it was safe to remain in the dusty atmosphere of the building site and had been reassured this was safe asbestos.

The Court of Appeal agreed with Judge Kearn's assessment of the University's culpability.

Implications

The Court of Appeal's judgment has reaffirmed that its role is not to disturb findings of fact made by primary judges.

Further, the Court of Appeal has reaffirmed it will refrain from intervening in evidentiary issues if those issues are not disputed in the primary proceedings. In other words, if evidence is admitted in a primary hearing without objection, the Court of Appeal will not reconsider whether the admission of that evidence should have been allowed. The Court of Appeal will not 're-hear' a case.

Arguably, the rules of expert evidence have been stretched slightly by the Court of Appeal's acceptance of the late 'opinion' evidence. For example, based on the Court of Appeal's ruling, experts who were not practising at the time of the alleged tort, can still give an opinion regarding what the acceptable standard or knowledge was at the time of the alleged tort by reviewing material which was available at the time of the alleged tort. This opinion, can then be used as expert evidence.

Insofar as light exposure is concerned, this decision does not set aside the Court of Appeal's decision in McNeill. Rather, the Court of Appeal distinguishes the facts of this claim from McNeill.

The Court of Appeal has distinguished low dose exposure in industrial settings from those in domestic settings.

It will be difficult to rely on a 'low dose' defence in claims which arise from industrial settings.

McNeill is still the applicable law for cases of low dose exposure in domestic situations.

For those clients and/or insurers who have asbestos related claims litigated in the Dust Diseases Tribunal, the finding that the University was 65% liable for Professor Rowley's injuries is noteworthy. This finding is a significant variation from the Standard Presumptions which are set out in Schedule 1 of the Dust Diseases Tribunal (Standard Presumptions—Apportionment) Order 2007 and which apportion liability between defendants to an asbestos related claim under Part 4 of the Dust Diseases Tribunal Regulation 2007.

Pursuant to the Standard Presumptions, the University in its capacity as Professor Rowley's employer should have been found liable for 35% of Professor Rowley's damages. Variations of up to 20% of the Standard Presumptions are permitted.

While a manufacturer of asbestos could not seek a 65% contribution from an employer in New South Wales for exposure in 1961 (as the maximum variation is 20%), the manufacturer could rely on the grounds and reasoning used by Judge Kearns in this case, to seek the maximum variation against employers and/or occupiers who should have had knowledge in the circumstances (such as Universities, hospitals, some government owned buildings, power stations etc).

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