Puttick v Fletcher Challenge Forests Limited [2008] HCATrans 207 (23 May 2008)

Last Updated: 29 May 2008

[2008] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M1 of 2008

B e t w e e n -

JANINA PUTTICK EXECUTOR OF THE ESTATE OF RUSSELL SIMON PUTTICK

Applicant

and

FLETCHER CHALLENGE FORESTS LIMITED

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 23 MAY 2008, AT 9.30 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR J.R.C. GORDON, for the applicant. (instructed by Slater & Gordon)

MR C.L. PANNAM, QC: If it please the Court, I appear with my learned friend, MS L.G. DE FERRARI, for the respondent. (instructed by Freehills – Melbourne)

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, the nature of the case upon which the choice of law decision was made, upon which then the discretionary stay was granted, was, in truth, as we have put in our written submission, that which is shown in the pleadings extracted by the learned President at application book page 45. It differs somewhat from the way in which the majority characterised it, but in our submission, it is incontestable, as his Honour concluded in paragraph 58 on that page, that the “cause for complaint” found in the negligence action, being the cause for complaint to be taken for the purposes of the argument as being the nature of the wrong in question was not simply one of the pleaded particulars of negligence, namely, instructing Mr Puttick to go to overseas asbestos plants, but rather causing or permitting him to be exposed to asbestos in factory sites in Belgium and in Malaysia.

GLEESON CJ: Do we know whether the law of Malaysia is different from the law of Belgium?

MR WALKER: We do not.

GLEESON CJ: Suppose it is, which would be the law that would be applied in the hearing of this action, the law of Malaysia or the law of Belgium?

MR WALKER: That much is completely unventilated in the record at present. One thing seems appropriate, that is not to rely upon any presumption of either similarity with the forum or with each other. They may well be different; they are likely to be different. There are two possible answers to the Chief Justice’s question. The first is that there was in fact more than one tort, that is, more than one cause of action in negligence, or whatever is the appropriate name for the delict in each of those countries.

The other possible answer appropriate to the nature of the application for a stay based upon the invidiousness of the forum applying New Zealand law is that it will not matter which of Malaysia or Belgium is the appropriate system of law, either operating concurrently for two separate torts committed on two separate occasions, or operating one to the exclusion of the other, because they will not either of them be New Zealand law, they will not have the peculiarities of New Zealand law that led as a matter of discretion to the forum non conveniens stay.

It is an unsettled question in our jurisprudence as to whether with so-called international torts one is entitled to distinguish, that is, separate into discrete torts those wrongs completed and actionable in themselves which occur in separate jurisdictions. Clearly, if more than one jurisdiction is involved in the commission of just one wrong in the sense that there is one place only which substantially represents the place where the acts or omissions alleged against the defendant became significant for the plaintiff, then that will be the only source of law.

In this case, there is a somewhat different presentation, namely, in each of Malaysia and Belgium it would appear there was a completed wrong. In each of those places severally it would appear that my client’s deceased inhaled asbestos. Now, as your Honours appreciate, the inhalation of asbestos has been regarded factually – not as a matter of law obviously – factually as likely to be cumulative and each material contribution to be contributing to one wrong.

That does not mean, of course, there are not more than one tortfeasor, there would be more than one tortfeasor. The problem the Chief Justice has raised is not one which will affect the outcome of the case in the sense that if New Zealand law is not the appropriate law then the entire foundation of the stay granted in this country will have been removed.

Your Honours, this is a case which in our submission very squarely presents a puzzle for those seeking to follow the authority, not only of this Court but of courts in New South Wales and in Victoria in relation to foreign negligence, if I may call it that, involving unsafe systems of work or unsafe work places. In the trilogy of New South Wales cases, to which attention has been drawn, it is significant that two of them were the subject of applications for special leave being dismissed on the ground that there was insufficient doubt as to their correctness.

As to the first of those, Putt, sometimes called Hall, by way of a substitution of party following a death, in Putt your Honours will have seen that disposition by this Court was noted by Chief Justice Spigelman in the passage to which we have drawn attention in Frost [2006] NSWCA 173; 67 NSWLR 635, the passage at 642 in paragraph 22. In our submission, the Chief Justice was, perhaps exceptionally in relation to citing special leave dispositions, appropriately drawing to attention that in relation to authority there was special reason for the Court of Appeal in New South Wales to regard Putt as setting down a direction which had to be followed, should be followed. Frost, that very decision itself, was then the subject of an unsuccessful application for special leave with, in substantial terms, the same outcome for the same reasons.

Now, in our submission, your Honours, notwithstanding the attempt to reconcile those authorities by the majority in the Court of Appeal in this case, the matter stands in reality, as the learned President put it, in application book page 47, paragraph 64. The fact is that in Putt and in Frost a place was made unsafe because there was sent there by way of sale material which should have been, as it were, accompanied by, perhaps more accurately preceded by, warning and proportion.

It was the place to which it was sent thereby rendered unsafe and exposing the plaintiff to a risk which supplied the answer to the question, which can be a difficult question depending on particular facts, as to the place whose law would supply the governing law. It is in accordance with the approach suggested by Professor Nygh and his co-author, adopted by Chief Justice Spigelman in the Court of Appeal of New South Wales in Amaca v Frost 67 NSWLR 644, in the passage to which the Court of Appeal drew attention in this case and to which attention has been drawn in the written submissions. It is paragraphs 39 and 40.

The distinction between the place to which defendant’s conduct is directed as compared with the place from which it originates is an important one bearing in mind the string of cases which had attempted, successfully at first instance but all unsuccessfully on appeal, to designate the place of the head office where the controlling minds made decisions to warn or not to warn, to include asbestos fibre or not to include asbestos fibre in manufactured commodities, supplied the place whose law would govern the outcome of alleged wrongs from exposure in foreign places. That argument has been had and won in cases like Putt, Grigor and Frost, and Putt and Frost were the subject of the unsuccessful applications for special leave to which I have referred.

In this case, of course, as always, the facts are different and we accept that mere factual analogy is no substitute for identifying a principle of law. However, doing the best one can from the summary descriptions of the principles to be gathered, which one finds in Chief Justice Spigelman’s reasons, in our submission, the learned President below was clearly correct in regarding the significant matter as the fact that my client was sent to places which on the pleadings the defendant knew or ought to have known had asbestos risks.

He was sent there in such a way that it would not be too late to have prevented what happened to him for him to have received the advice, counsel or instruction to refrain from going into certain places or to employ certain precautions in those places on the very eve of committing the conduct that led to his injury. In those senses, in our submission, there is a very close analogy with the nature of a warning which is commercially decided upon, operationally decided upon, say, in a thalidomide factory or packaging factory, somewhere in the northern hemisphere, which has to operate in all the places where the thalidomide is directed by way of worldwide sale. Thus, the Distillers Case, in our submission, provides a very important analogy by way of principle, supportive entirely of the way the President disposed of this case according to his reasoning.

Your Honours, the position, the odd position, is reached, in our submission, if the majority finding were to stand, that if a workplace is in the same place as asbestos manufactured by a defendant then one result follows. If a workplace is in a different place and the defendant’s asbestos is sent there, then another result follows, that is Putt and Frost. A third variant for no principled reason appears in this case, namely, if a workplace is where asbestos not supplied by the defendant is but the defendant has a duty to warn about asbestos, yet another variant applies.

No reason is supplied in particular by the way in which the learned Chief Justice, application book 33 at paragraph 26, dealt with the matter. The general proposition extracted by her Honour from the earlier cases to which I have referred is found at about line 20. Her Honour suggests that the general proposition, if any, to be gathered from them, is that:

in cases such as the present, the place of the tort is the place ‘where the warning should have operated to protect the plaintiff’ or ‘where the system of work should have been safe’.

With great respect, we would urge that that is a correct understanding of the proposition to be gathered from those cases, but in the situation of my client the warning should have operated to protect the plaintiff where the exposure was the risk, and that is not in New Zealand at all - it was not the New Zealand company’s asbestos, it was asbestos for which the New Zealand company ex hypothesi had a duty to warn my client, to guard against my client’s exposure.

Secondly, “where the system of work should have been safe” - well, that is not in New Zealand. This is a man whose employment required him to work otherwise than in New Zealand, and the duty of care applied in those other places. Thus, her Honour’s conclusion:

In this case, that place is New Zealand -

is, in our submission, unaccountable and anomalous compared with the outcome of the New South Wales cases.

Similarly, the approach taken by Justice Chernov, which can be seen at application book page 60, is in our submission, irreconcilable with the approach taken in the New South Wales cases. First of all, in paragraph 97 his Honour excessively narrowly characterises the nature of the case pleaded. That is the matter at which I started my address. In paragraph 98 his Honour elides the step of exposure to the asbestos and moves straight to that which may in truth be fortuitous in the sense of the cases, namely, where the disease may have been contracted.

Alternatively, the notion of contracting the disease with which his Honour starts paragraph 98 may be a reference to the theory, factual or otherwise, that the disease in question is contracted upon, as it were, first, or very soon thereafter, inhalation. If it is to understood - - -

GLEESON CJ: Nobody suggests that, do they?

MR WALKER: It is difficult to understand what paragraph 98 is referring to when it says “the disease may have been contracted”.

GLEESON CJ: Presumably, this disease is contracted when the fibres that you have inhaled produce a certain physiological result.

MR WALKER: That is the preferred view, in our respectful submission. That may be thought to have occurred not in Malaysia or Belgium in this case, rather in Australia, which truly would be fortuitous, if that is the way in which one is to understand his Honour’s view of the assumed facts. However, the reference to it being contracted in Malaysia or Belgium rather suggests his Honour may be thinking about the place of inhalation. If so, in our submission, that cannot possibly be regarded as fortuitous in the relevant sense. It is certainly not the same as if it was contracted, “on the moon” as his Honour puts it in the next sentence.

In our submission, where the wrong alleged is a failure to prevent exposure by a workman in a place to which he has been sent by his employer, the fact that that place is outside the jurisdiction is, in our submission, immediately characterising the wrong as an international one, a foreign tort. It is conduct which has its effect. It is directed to that other place. Just as when one sends defamatory words around the world simultaneously to many places at once, wrongs are committed governed by the separate laws of all the places where there are persons concerned to complain about it, the Gutnick Case, so in our submission when one sends workmen out to premises which ex hypothesi you should be guarding against in relation to unreasonable dangers you will be committing wrongs
wherever you direct those workmen to go according to the laws of all of those places.

In our submission, that is the only satisfactory way to answer what can be the difficult question of the locus of omissions, and in this case it is possible, clearly, to characterise the failure of the defendant as being in the nature of an omission. The question of omissions and their location is one which is certainly not foreclosed in this Court. Voth v Manildra both notes the difficulty and supplies, in our submission, a method of resolving it in principle which was entirely properly both understood and applied by Chief Justice Spigelman in Frost.

If that understanding be correct, then the conduct in this case of the employer was in all respects the same as a manufacturer directing negligently labelled asbestos abroad, a manufacturer directing negligently mislabelled thalidomide abroad, or an employer sending out workers to premises which are unsafe abroad. In those circumstances, the fact that decisions may be made at head office where the defendant is located or at branches in various jurisdictions, either intra or internationally, is in our submission, of no significance, just as it is of no significance as to whether the thalidomide was manufactured in Scotland, packaged in England, or the subject of decisions as to labelling, made in Switzerland.

So for those reasons, in our submission, this case presents an anomalous and unreconciled authority, settled authority, for persons to follow in relation to not only the practical application such as presents the issue in this case, namely, applications for stays, but also the essential fundamental question of what system of law governs the dispute between parties, and it is for those reasons, in our respectful submission, that it is a case apt for the grant of special leave. May it please the Court.

GLEESON CJ: Thank you. Yes, Dr Pannam.

MR PANNAM: If the Court pleases, can I first deal with the question that the learned Chief Justice put to my learned friend about whether there was any evidence below as to whether there was a difference between the law of Malaysia and Belgium. There was, in fact. There were two affidavits. One affidavit was sworn by Mr Higgins on 6 April 2006, and in paragraph 5 he said that the principles of negligence in Malaysian law were the same as English law. There was another affidavit that was sworn by, or rather it is a declaration by a lawyer, a practising lawyer, in Belgium, who indicated that the civilian law would apply. So, there are differences between the two, they are not the same, there was evidence of that below.

But, your Honours, can we approach the resistance of this leave application by reference first of all to the facts? If one looks at the facts of this particular case, in our submission, every significant fact took place in New Zealand, and we attempt to make that good in the following way. The employment of the applicant was by a subsidiary of Fletcher Challenge, a Tasmanian company called Tasmanian Pulp, and that employment was in New Zealand, so you have a New Zealand employer, you have New Zealand employment. It is not suggested anywhere that Fletcher Challenge or Tasman Pulp had any power, any control, or any influence or any presence in the foreign places where the applicant was sent, so that all of the actions of the company were in the employment, were in New Zealand.

The third point is, it is not suggested that the asbestos to which the applicant was exposed had anything to do with any product that was produced by the employer, whether in New Zealand or anywhere else. So one has to identify in accordance with the line of authority, beginning with Jackson v Spittall, what is the act of the defendant of which complaint is made? In our respectful submission, the answer to that question admitted that it was one answer, and that is it was the act of the defendant in saying to the applicant, you go to place A, you go to place B, you go to place C, or wherever else, and there attend at those asbestos plants and carry out whatever duties he was required to carry out.

Now, in our respectful submission, if you accept the proposition that was put on the other side you in effect go back to the old doctrine of the last element of the tort and use that as the controlling feature of the choice of law and, in our respectful submission, that is not the law that has been accepted in this Court, one looks rather at the substance of the matter. Can we in that connection take your Honours to a passage from Dow Jones v Gutnick at paragraph 43, and I do this for two reasons. The first is to identify as being the principle that which I have just stated, and if we go to paragraph 43:

Reference to decisions such as Jackson v Spittall, Distillers Co (Biochemicals) Ltd v Thompson and Voth v Manildra Flour Mills Pty Ltd show that locating the place of commission of a tort is not always easy. Attempts to apply a single rule of location (such as a rule that intentional torts are committed where the tortfeasor acts, or that torts are committed in the place where the last event necessary to make the actor liable has taken place) have proved unsatisfactory if only because the rules pay insufficient regard to the different kinds of tortious claims that may be made. Especially is that so in cases of omission. In the end the question is “where in substance did this cause of action arise”? In cases, like trespass or negligence, where some quality of the defendant’s conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt.

In our respectful submission, this is a case of negligence. The inquiry that is mandated by that passage is to look where the defendant acted and not where the consequence of the conduct were felt, and in our respectful submission, the facts of this case attract that principle, and what our learned friend is relying upon is the consequences of the conduct rather than the conduct itself.

That is the first point of the reference. The second point of the reference is this. Our learned friend referred to defamation and the possibility in defamation that you would have from the one action, that is, putting out the publication, commission of torts in various jurisdictions, so the choice of law would not be confined to one jurisdiction, but to many. Now, the way in which the court dealt with that was in the next paragraph, and it did it by way of contrast to that paragraph. What the court said was:

In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher’s conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged.

Now, in our respectful submission, the Court is there drawing the very contrast that really puts paid to our learned friend’s argument to the effect that by analogy you can reason here that in the tort of negligence there may be many places that will attract a different choice of law rule in relation to facts, the basic facts, that underpin the negligence that is alleged. The Court was there drawing the very distinction between negligence on the one hand and on the other hand defamation.

So that, in my respectful submission, the facts of this case show, if one is looking in accordance with the Jackson v Spittall line of authority, through Voth, through Dow Jones, but where you are attempting to locate the action, which includes the omission, it is not only the act of directing him there, it is the action of directing him to go to those places without an appropriate warning not to go into particular places unless he was particularly safeguarded in a particular way, shows that it is all in New Zealand. Now, that is, in our respectful submission - - -

GLEESON CJ: Is it the case that here, fortuitously, the mesothelioma was probably contracted in Victoria?

MR PANNAM: Not contracted in Victoria.

GLEESON CJ: I thought he came to live here some years before he died.

MR PANNAM: Yes, he did, but - - -

GLEESON CJ: For how long was he suffering from - - -

MR PANNAM: The symptoms manifested themselves – the cause of complaint is that those symptoms were triggered by the ingestion of the asbestos fibre and dust in those foreign places.

GLEESON CJ: I understand that.

MR PANNAM: So that, in our respectful submission, what really is being urged here is it is the place where the ingestion took place that ultimately produced the symptoms of the disease from which he died that mandates the choice of law rule being to those places.

GLEESON CJ: What do you say about Mr Walker’s argument that there is a conflict between the decisions of the New South Wales Supreme Court and this decision?

MR PANNAM: I will come to that. That was the next point I was going to make, your Honour. It is true that in Hall, Grigor and Amaca there is one thread that links them all together, namely, that the choice of law rule that produced New Zealand as the result in those cases was the place where the ingestion of the fibre, or the inhalation of the fibres or the dust, took place, but that was only the beginning.

If you look at each of those cases you have added to that fact a whole lot of other facts. If one first of all takes Hall, there the employment was by a Hardie subsidiary in New Zealand between 1947 and 1951, and during the course of that employment Mr Hall was required to handle a large quantity of asbestos building products, and those products were manufactured in New South Wales but they were supplied to the New Zealand subsidiary. The alleged negligence in that case was a failure to warn, to provide safeguards, or to provide a safe system of work. When one adds all of those facts to the fact of ingestion one, of course, can see the accuracy of the conclusion that the choice of law rule produced the right answer in that New Zealand was that place.

If you go to the other two cases you get to the same kind of reasoning. In Grigor, the applicant was employed between 1962, I think, and 1980, engaged in building renovations at his and his, I think, father’s house. In order to carry out those renovations purchases were made of product that contained asbestos, a product called “Fibrolite”. Now, the exposure was due to the use of that product, which was purchased for that purpose in New Zealand, and it was manufactured in part in Australia and in part in New Zealand. Now, the allegations of negligence were failure to warn, withdrawal from the market, or supply when danger was known.

Now, when again one adds to the place of ingestion of the fibres or the dust those additional facts it is clear that the acts that were being complained of were acts in New Zealand, namely, he could go along to the local store, buy the product, use it at his house and his father’s house, without any warning as to the risk, so that all of those additional facts located the tort in New Zealand.

So too with Amaca. In Amaca between 1963 and 1966 there was an exposure during the course of employment with an unrelated New Zealand company, so the employment was in New Zealand, the employer had nothing to do with Amaca, but the product was manufactured in New South Wales and was distributed in New South Wales and in New Zealand and it was packaged up for immediate use.

There was no presence at all of Amaca in New Zealand, but all of the other – it was a product liability case, and the product was sold and used by the employer of the applicant in that case in New Zealand. So that the point we make is, to simply seize upon the one common thread, namely, that the inhalation took place in New Zealand that underpins those cases, is really to ignore the additional facts in each of them that located the place of the tort as being in New Zealand.

GLEESON CJ: From one point of view, these cases are all about New Zealanders trying to get away from the New Zealand system of no fault compensation - - -

MR PANNAM: That is certainly so, your Honour.

GLEESON CJ: - - - and head for the New South Wales Dust Diseases Tribunal in those cases.

MR PANNAM: Yes, and certainly in those three cases, your Honour. So that what we say is, in terms of principle the facts of this case locate the act complained of as being an act in New Zealand. In terms of authority, the attempt to rely upon the choice of law rules that are appropriate in defamation matters do not apply for the reasons that we have put.

Insofar as an attempt is made to mount an application for special leave for the purpose of resolving differences of opinion between intermediate courts of appeal then we repeat the submissions just made that there really is no distinction between the approach of the cases. They were all fact sensitive, applying the particular principles, and they came to the
right conclusion. So for those reasons, we would submit that the present application for special leave ought to be rejected.

GLEESON CJ: Thank you. Yes, Mr Walker.

MR WALKER: Your Honours, this is not a case that turns on any special rule for defamation, although defamation obviously is a tort that differs from negligence resulting in personal injury. In this Court, although the distance from Canberra to Queanbeyan is not as great as from New Zealand to Belgium, there was the exact parallel, of course, in John Pfeiffer v Rogerson itself. The employer had sent the employee to a workplace that turned out, for want of proper instruction, to be unsafe out of the jurisdiction.

There was never any question, indeed, it is the very premise of the case and everything for which it stands, that it was the New South Wales law, not the law of the ACT, where the employer failed to give the instruction that governed the outcome of the dispute between the parties. The parallel with the present case is, pace the great difference in geographical distance, exact. That is the first point.

The second point is that this case does indeed raise matters which have been described as difficult, including in this Court from time to time, and presents an ideal vehicle to test one of the questions that the Privy Council left open in Distillers. Your Honours will have seen the discussion of that matter by Chief Justice Spigelman in Amaca v Frost 67 NSWLR at 640 to 641, and in particular paragraphs 16 and 17. At the top of page 641 just before paragraph 17 the quotation from the board’s advice, the Chief Justice quotes this passage:

On the one hand X is the country where the defendant was negligent –

The way our opponents put the case that would appear to be New Zealand –

and on the other hand Y is the country in which the defendant’s negligence caused the plaintiff to be hurt.

The way our opponents put the case that would be Belgium –

The problem is a difficult one and there is no need to express any opinion on it in the present case.

So there is not the authority that Distillers provides for courts below this Court supplied by their Lordships’ reasoning to cover a case such as the
present. It is, in our submission, an ideal opportunity for this Court to grapple with that issue.

The significance for the dispute between the parties, which is essential to ascribe to an omission, in locating an omission, has, of course, been the subject of general remarks by this Court in Voth. Voth, of course, is a representational case and it may well present some differences between it and a case involving unsafe system of work involving the inhalation of a noxious substance abroad.

It is to be recalled as well that one of the points of origin in the statements of authority in the collection of descriptions by which the question may be answered, namely, Jackson v Spittall, as noted in a number of different places, including in Amaca v Frost, itself is a contract case and so does not in terms conclude the question where there are steps after breach before there is a completed cause of action.

It is not the case, emphatically not the case, that we are reverting to a discredited last element in cause of action theory. The last element in cause of action theory is the suffering of an injury. If my client’s deceased had never suffered mesothelioma, he would not have the cause of action, and it is not alleged that he contracted that in Belgium or Malaysia. What he did was inhale there the substance which in due course brought that about, and the dislocation in time and place and the fortuitousness of the difference between Belgium and Malaysia on the one hand and wherever he happened to be when mesothelioma came into existence is of no moment to our case. We have never put an argument of that kind.

Where the omission assumed significance had to be where he was exposed to asbestos. What negligence could there possibly have been had it never occurred to my client’s deceased’s’ employer to send him to places where for all they knew the factories had asbestos. What possible duty could they have had to research the asbestos or asbestos proportions in places where they had no intention of sending workmen? Their conduct in sending him was conduct directed to those places where he was required in their interests to work.

Those are the places where their omission to carry out the reasonable precautionary steps assumed significance for the plaintiff by exposing him to the risk which fell in, namely, of inhalation of a noxious substance. It is for those reasons that the facts of this case do present an ideal vehicle to advance incrementally the matters in principle in this area. May it please the Court.

GLEESON CJ: We will adjourn for a short time to consider the course we will take.

AT 10.07 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.10 AM:

GLEESON CJ: In this matter there will be a grant of special leave to appeal.

We will adjourn for a short time to reconstitute.

AT 10.10 AM THE MATTER WAS CONCLUDED