Csr Ltd v Della Maddalena

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Kirby J,Hayne J,Callinan,Heydon JJ
• Judgment Date: 02 February 2006
• Neutral Citation: 2006-0202 HCA A,[2006] HCA 1
• Docket Number: P36/2005
• Date: 02 February 2006

[2006] HCA 1

HIGH COURT OF AUSTRALIA

Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ

P36/2005

CSR Ltd & Anor

Appellants

and

Arturo Della Maddalena

Respondent

Representation:

B W Walker QC with J G Mengler for the appellants (instructed by Jackson McDonald)

B F Quinn with P D Nicholas for the respondent (instructed by Slater & Gordon)

Supreme Court Act 1935 (WA), s 58(1)(a).

CSR Ltd v Della Maddalena

Practice and procedure — Appeal — Credibility of witness — Whether intermediate appellate court entitled to substitute its own findings as to credibility for that of trial judge — Whether court erred in ordering retrial limited to assessment of damages.

Courts — Appeal — Procedural fairness — Expert witnesses — Court expressed preference for evidence of particular expert witnesses — Whether court's reference to such expert witnesses as ‘well known to the court’ constituted a breach of procedural fairness — Whether matter should be remitted for rehearing.

Words and phrases — ‘procedural fairness’, ‘retrial’.

ORDER

1. Appeal allowed.

2. Set aside paragraphs 2 and 3 of the orders of the Full Court of the Supreme Court of Western Australia made on 13 October 2004 and, in their place, order that:

• (a) the judgment and orders of the District Court of Western Australia made on 17 December 2002 be set aside; and

• (b) there be a new trial of the action.

1 Gleeson CJ. I agree with the orders proposed by Kirby J. For the reasons explained by Kirby J, the Full Court of the Supreme Court of Western Australia was justified, in accordance with the principles re-affirmed by this Court in Fox v Percy1, in reversing the decision of the primary judge on the principal issue in the appeal. The remark about the Full Court's high regard for some of the expert witnesses in the case was capable of being misunderstood, but in the end it is not a matter to which I would attach importance. I also agree that the disposition of the case by the Full Court was inappropriate in that there should be a retrial.

2 Kirby J. This is an appeal from a judgment of the Full Court of the Supreme Court of Western Australia 2. By that judgment, the Full Court unanimously 3 ordered that a judgment of the District Court of Western Australia (O'Sullivan DCJ) 4 against Mr Arturo Della Maddalena (the respondent) and in favour of his former employers, CSR Ltd and Midalco Pty Ltd (the appellants), be set aside.

3 In place of the judgment at trial, the Full Court concluded that the respondent ‘suffered a psychiatric injury caused by his exposure to asbestos while in the employ of at least one of the [appellants] at Wittenoom and that his injury was caused by the [appellants'] negligence’ 5. Because of an unresolved conflict as to the respective liabilities of the former employers 6, the Full Court ordered that the proceedings be remitted to the trial judge for determination in accordance with the Full Court's judgment. This required that the trial judge determine the liability of the first appellant, CSR Ltd, having regard to the denial in its defence that it owned, occupied or managed the mine and mill at Wittenoom where the subject exposure to asbestos was alleged to have occurred. Subject to the resolution of that question, the Full Court determined that the primary judge should assess the damages to which the respondent was entitled 7.

4 The starting points for an understanding of the foregoing conclusions, reached by the Full Court, must be stated at the outset of these reasons. Only by appreciating them may the conclusion reached, and the orders made, by the Full Court be understood. The starting points involve what are substantially uncontested propositions, respectively of fact and law.

The uncontested or established facts

5 Physiological and psychological injuries: There were many disagreements between the parties, at trial and on appeal, concerning the facts of this case. However, by the time the proceedings were concluded in this Court certain issues of fact were not in serious contest.

6 The respondent had alleged in his pleading and in his case as initially presented at trial that, in the course of the work that he had performed as a young man between 1961 and 1966 at the asbestos mill in Wittenoom, the appellants had negligently exposed him to asbestos. As a result, he initially claimed that he suffered asbestosis, pleural disease, respiratory degeneration and pain and breathlessness as a consequence of his heavy exposure to asbestos dust and the physical injuries that it had produced.

7 By the time the evidence at trial had concluded, as found by the primary judge 8, the respondent's symptoms ‘could not be explained by the extent of his physical degeneration’ 9. The physiological condition produced by exposure to asbestos dust (known as asbestosis) was found to be unproved on the evidence 10. In the Full Court (and before this Court) the respondent did not suggest otherwise. Nor did he contest the primary judge's rejection of the alternative contention that his symptoms of pain, breathlessness, lethargy and depression were the result of pleural disease or pleural plaques caused by exposure at work to asbestos dust 11. In this way, at both levels of appeal, the question became whether the respondent had established that he was suffering from a psychiatric injury (with depression, morbidity and anxiety symptoms), causing incapacity, because of his reaction to the exposure to asbestos.

8 For the reasons that he gave, the primary judge rejected this additional or alternative claim advanced by the respondent 12. It was this part of the primary judge's reasoning that the Full Court found to have been erroneous, authorising that Court to substitute its own conclusions, based on the evidence, favourable to the respondent. It is the Full Court's conclusion in this regard that, by special leave, the appellants now challenge in this Court.

9 Uncontested objective facts: Before going to the detail of the issues argued in the appeal, it is necessary to collect the most important, uncontested, objective facts that provide the circumstances that help to explain the conclusions of the Full Court. Those facts were that:

• (1) The respondent migrated to Australia from Italy at the age of eighteen, following an older brother (or step-brother), Walter, who had preceded

  him and who introduced the respondent to the work at Wittenoom, eventually with both of the appellants, between 1961 and 1966;

• (2) Between the stated years, the respondent was heavily exposed to asbestos dust at the asbestos mill in Wittenoom;

• (3) In about 1985, at the Perth Chest Clinic, nearly twenty years after quitting the work at Wittenoom, the respondent was informed that he had evidence of asbestosis. The fact that, eventually, a diagnosis of asbestosis was not made is irrelevant to the impact on the respondent of this communication;

• (4) In 1988, the respondent saw Walter die a slow and painful death at the age of 54 years. His death was explained at the time as related to Walter's exposure to asbestos at Wittenoom, for part of a working period overlapping the employment of the respondent in the same place;

• (5) After Walter's death, the respondent consulted Professor A W Musk, Professor of Respiratory Medicine, and underwent tests that revealed that he did in fact have evidence of asbestos in his lungs;

• (6) Whilst establishment of asbestosis and pleural disease was not affirmatively demonstrated, the existence of ‘benign asbestos lung disease in the form of pleural plaques’ was shown, with changes in the lung bases from early in 1997, and with a CT scan showing some areas of pleural thickening;

• (7) Although physical injury to the requisite degree was not established by reference to the ‘rather artificial criteria’ of the diagnostic protocol ‘which devalues the reality of these disorders through overuse’ 13, the possible future progression of the respondent's ‘very early’ 14 interstitial lung disease could not be ruled out simply because, to the time of the trial, the likelihood of such a development had not been affirmatively proved;

• (8) After Walter's death from asbestos-related causes, the respondent saw several friends die painful deaths from mesothelioma and other asbestos-related conditions. By the late 1990s, there were ‘at least’ twenty friends whom he had visited in hospital and who suffered from diseases related to asbestos exposure;

• (9) The respondent knew thirteen people from his village in Italy who had come to Australia and, like him, worked at Wittenoom. All but four of them had died of mesothelioma, related to asbestos exposure;

• (10) In 1997, the respondent had attended the funeral of a friend at Karrakatta cemetery. Whilst there he had purchased a grave plot for himself. It was close to Walter's grave;

• (11) The respondent's educational level in Italy was extremely limited. He had grown up in a small village and attended school only to about fourteen years of age. After he left school he worked as a labourer 15. In more recent years, before the trial, the respondent's limited social connections had included the Asbestos Diseases Society of Western Australia, where he met, and worked as a volunteer with, friends and colleagues, attending to their medical and hospital care and their funerals when they died; and

• (12) A psychiatric disorder, involving severe depression, in persons who have been exposed to asbestos dust, and are thus at special risk of later developing asbestos-caused cancers and serious disabilities, is a ‘recognisable psychiatric injury … of some substance’ 16. The existence or absence, in the respondent's case, of that recognised psychiatric injury was the essential issue for trial, once it was accepted that the respondent had not (yet) been able to prove a diagnosis of asbestosis based on...