Amaca Pty Ltd (Under NSW Administered Winding Up) v Booth

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: French CJ,Gummow,Heydon,Crennan JJ,Heydon J.
• Judgment Date: 14 December 2011
• Neutral Citation: [2011] HCA 53,2011-1214 HCA A
• Docket Number: S219/2011
• Date: 14 December 2011

[2011] HCA 53

HIGH COURT OF AUSTRALIA

French CJ, Gummow, Hayne, Heydon And Crennan JJ

S219/2011

S220/2011

Amaca Pty Limited (Under Nsw Administered Winding Up)

Appellant

and

John William Booth & Anor

Respondents

Amaba Pty Limited (Under Nsw Administered Winding Up)

Appellant

and

John William Booth & Anor

Respondents

Representation

J T Gleeson SC and N J Owens for the appellant in S219/2011 (instructed by Holman Webb Lawyers)

G M Watson SC with J C Sheller for the appellant in S220/2011 (instructed by DLA Piper Australia)

D F Jackson QC with S Tzouganatos for the first respondent in both matters (instructed by Turner Freeman Lawyers)

Submitting appearance for the second respondent in both matters

Amaca Pty Limited (Under NSW Administered Winding Up) v Booth

Amaba Pty Limited (Under NSW Administered Winding Up) v Booth

Evidence — Expert evidence — First respondent sued appellants in Dust Diseases Tribunal of New South Wales — First respondent claimed exposure to asbestos fibres in breach of each appellant's duty of care caused his mesothelioma — First respondent's expert evidence that cumulative exposure to asbestos contributed to mesothelioma accepted at trial — Appellants led epidemiological evidence disputing link between exposure to asbestos of members of first respondent's profession and risk of mesothelioma — Whether inference of fact concerning contraction of disease reasonably open on evidence.

Negligence — Causation — Whether more probable than not that appellants' negligence was a cause of first respondent's disease — Whether issues of causation lie within common knowledge and experience — Role of expert medical evidence.

Practice and procedure — Appeal — No evidence — Appeal from Dust Diseases Tribunal of New South Wales to Supreme Court of New South Wales — Section 32 of Dust Diseases Tribunal Act 1989 (NSW) confers a right of appeal to Supreme Court against decision of Tribunal ‘in point of law’ — Whether Tribunal erred in point of law when deciding that appellants' negligence more probably than not a cause of first respondent's disease.

Words and phrases — ‘causation’, ‘cause and consequence’, ‘epidemiological evidence’, ‘manifest error’, ‘mesothelioma’.

Dust Diseases Tribunal Act 1989 (NSW), s 32.

ORDER

In each matter, appeal dismissed with costs.

French CJ

Introduction

1 John Booth, a retired motor mechanic, suffers from malignant pleural mesothelioma. He had two brief exposures to asbestos as a child and youth in connection with home renovations and one brief exposure when loading a truck in 1959. He attributes his disease to his exposures to asbestos in brake linings on which he worked over 30 years between 1953 and 1983 1. In July 2008, he commenced proceedings in the Dust Diseases Tribunal of New South Wales (‘the Tribunal’) against Amaca Pty Ltd (‘Amaca’) and Amaba Pty Ltd (‘Amaba’), the two companies which manufactured most of the brake linings on which he worked.

2 The primary judge found that an ‘overwhelming inference of causation’ adverse to Amaca and Amaba could be drawn from the following facts 2:

His Honour held that proof of causation in the case did not ‘turn upon the epidemiological evidence, or upon questionable estimations of total fibre burden.’ 3

• • Mr Booth's mesothelioma was caused by the inhalation of asbestos fibre;

• • mesothelioma very rarely occurs in persons who have not been exposed to asbestos fibres beyond the background level that pervades urban environments;

• • for a total of 27 years, week in and week out, Mr Booth was additionally exposed to asbestos fibres liberated from asbestos brake shoes by his own work and by the work of others in his vicinity;

• • the previous exposure in the course of home renovations and truck loading was, in comparison, trivial.

3 His Honour also found that it was reasonably foreseeable by Amaca and Amaba at the relevant times that an automotive mechanic exposed to asbestos fibre released from brake linings over many years might contract an asbestos-

related disease 4. Each of Amaca and Amaba owed a duty to take reasonable precautions to prevent Mr Booth suffering harm in consequence of the use of their products 5. Each had breached that duty by failing to provide adequate warnings to persons working on the brake lining products 6. His Honour awarded judgment for Mr Booth against both Amaca and Amaba in the sum of $326,640 7. He also ordered that Amaca and Amaba pay Mr Booth's costs.

4 Amaca and Amaba appealed to the Court of Appeal of the Supreme Court of New South Wales on questions of law pursuant to s 32 of the Dust Diseases Tribunal Act 1989 (NSW) (‘the Act’). They also filed summonses pursuant to s 69 of the Supreme Court Act 1970 (NSW) (‘the Supreme Court Act’) seeking orders in the nature of certiorari to quash the Tribunal's decision for jurisdictional error. The argument before the Court of Appeal focussed on the appeals filed under s 32. No separate argument was raised in support of the summonses under s 69 of the Supreme Court Act 8. The Court of Appeal held that Amaca and Amaba had failed to show that the primary judge had erred in law. It dismissed their appeals and their summonses 9.

5 On 10 June 2011, Gummow, Hayne and Heydon JJ made orders granting Amaca and Amaba special leave to appeal from the decision of the Court of Appeal limited to the following grounds:

‘The Court of Appeal erred in holding that any act or omission on the part of the Appellant caused the First Respondent's injury:

• a) By declining to correct, or alternatively by approving, the primary Court's decision that causation could be established by reference to an increase in risk, even a small increase in risk;

• b) By declining to correct, or alternatively by approving, the primary Court's reliance upon insufficient expert opinion evidence in respect of causation.’

6 For the reasons that follow the evidence was sufficient to support the conclusion of the Tribunal that Amaca and Amaba's products caused Mr Booth's disease. The appeals should be dismissed with costs.

Factual background

7 The following factual background emerged from the findings of the primary judge and is not in issue in these appeals.

8 John Booth was born on 26 April 1937. He first experienced the symptoms of his disease, shortness of breath and chest pains, in February or March 2008. He was diagnosed with mesothelioma. There is no serious contest that his disease was caused by the inhalation of asbestos fibres.

9 Mr Booth was exposed to asbestos fibre of different kinds and at different times over many years since his childhood. There were three brief exposures between 1943 and 1959. As a child in 1943, he helped his father with the cutting of asbestos sheets for use in the renovation of their family home. He held the sheets in place. The cutting process took about half an hour. In 1953, he helped his father in the building of a fibro garage over a period of two days. He held asbestos sheets in place while his father cut and nailed them to a timber frame. In 1959, Mr Booth worked briefly as a truck driver. On one occasion during that period he spent about 20 minutes loading bags containing asbestos onto his truck.

10 The brief isolated exposures described in the preceding paragraph were dwarfed by Mr Booth's occupational exposure to asbestos in brake linings during his career as a motor mechanic. Mr Booth commenced his apprenticeship in February 1953 and completed it in April 1954. From 1954 until 1983 he worked as a motor mechanic, save for an interregnum between 1969 and 1971. His work, for a variety of employers, included the replacement of brake linings made from asbestos. The frequency of the replacement tasks varied from twice a month to three times a week depending upon the particular employment.

11 Mr Booth's work in replacing brake linings required him to hammer rivets through holes in the linings in order to fix the linings to metal shoes. He would drill holes in linings when the misalignment between the manufactured holes and corresponding holes in the metal shoe was too great to allow rivets to be forced through both. His work also involved grinding the leading edge of brake linings on a bench grinder. This grinding generated asbestos dust which collected on his clothes, on the workbench and on the floor of the workshop. It would be re-agitated into the atmosphere by brooms, passing feet and the use of compressed air to clean the workbench. It took Mr Booth about four hours to replace the linings on a passenger vehicle and up to three hours per wheel to replace the linings on commercial trucks.

12 Hardie-Bestos and Hardie-Ferodo brake linings were manufactured by Amaca between 1953 and 1962. From 1962 to 1983 they were manufactured by Amaba. Mr Booth worked with a number of different brands of brake linings during his career as a motor mechanic. The primary judge found that 70 per cent of the asbestos fibres to which he was exposed between 1953 and 1962 were released from brake linings manufactured by Amaca and 70 per cent of the fibres to which he was exposed from 1962 to 1969 and from 1971 to 1983 were from linings manufactured by Amaba 10.

13 There are different kinds of asbestos fibre including amosite, chrysotile and crocidolite. Amphibole asbestos, which includes crocidolite or amosite, is a more powerful causal agent in relation to mesothelioma than chrysotile. The kind of asbestos fibre to which Mr Booth was exposed as a child and young man in assisting his father with home renovation work was not known. The asbestos fibre which he loaded on to the truck in 1959 was probably chrysotile. So too was the asbestos used in the Hardie-Bestos and Hardie-Ferodo brake linings on which he worked.

14 In addition to the preceding factual background, the following findings of the primary judge were...