BHP Billiton Limited v Hamilton & Anor [2014] HCATrans 45 (14 March 2014)

Last Updated: 17 March 2014

[2014] HCATrans 045

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A26 of 2013

B e t w e e n -

BHP BILLITON LIMITED

Applicant

and

MARGARET SCHOULAR HAMILTON AS REPRESENTATIVE OF THE ESTATE OF RAYMOND CHARLES HAMILTON

First Respondent

MARGARET SCHOULAR HAMILTON

Second Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 14 MARCH 2014, AT 10.12 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 T.G.R. PARKER, SC, for the applicant. (instructed by HWL Ebsworth Lawyers)

MR M.C. LIVESEY, QC: If the Court pleases, Livesey appearing with MR B.J. DOYLE for the respondent. (instructed by Moloney and Partners)

HAYNE J: Yes, Mr Livesey. Yes, Mr Walker.

MR WALKER: May it please your Honours, the provision in question in these proceedings at the heart of our application, subsection 8(2) of the Act, is set out at page 170 of the application book in paragraph 11. I go there conveniently because on the same page in paragraph 15 Justice Blue in the Full Court, with respect, correctly, but in general terms, said this:

The subsection operates against the background and in the context of the common law defining what constitutes breach of duty: the subsection addresses one element of breach of duty but does not otherwise modify the common law.

Now, an appreciation of subsection (2) of section 8 in the context of the whole of section 8 shows that it is one of a miscellaneous – I do not use that word derogatorily but rather to point that a variety of perceived mischiefs is addressed by section 8 as a whole – a miscellaneous collection of ways in which it is clear the legislature supposed that improvement could be made, at least from some points of view, to the conduct of litigation in this area. Now, your Honours will appreciate that there are large policy choices available outside courts in relation to what I am going to call “asbestos litigation”.

One of them concerns potential disturbance to a basic common law tenet that this Court has, without any doubt ever evinced, repeated over the decades, and that is that the questions which turn inform the existence of a duty, the content or scope of the duty, the standard and therefore the conduct which might constitute breach must all be answered by looking forward prospectively from the time putative breach. Thus, in the circumstances that obtained at the time, including of course that which is reasonable and proper in those circumstances, to contemplate as to the then future, in particular, for the particular plaintiff, as well as the class to which he or she or it may belong.

HAYNE J: And at the time that is relevant in this case, the state of knowledge proved at trial was what, it was known that asbestos was dangerous and could cause disease?

MR WALKER: In very general terms, and I stress, in very general terms, yes, however - - -

HAYNE J: Why do we ever get to the statute if we grant leave?

MR WALKER: Well, let me be blunt, the leave should be granted, if at all, because of the statute, hence your Honour’s question to me.

HAYNE J: If we do not get to the statute because it goes off without regard to the statute, what have we achieved?

MR WALKER: Now, of course, if you do not get to the statute because the state of knowledge at the relevant time is, as Justice Hayne has put it to me in those very general terms, then in a case such as the present where that very general state of knowledge imports nothing as to reasonable response to the level of exposure for this plaintiff in relation to the harm that he did suffer, then we have suffered an irremediable injustice. We have not had a trial which has involved a proper and principled application according to the common law in this country of negligence which has at its heart that which makes a party liable, wrongdoing. The judgment involved in describing as negligent conduct which was not deliberate as an intention to inflict harm.

That necessarily involves falling short of standards and the very general knowledge that Justice Hayne has raised with me as that which dehors the statue might be supposed from the constantly tendered and retendered material in the asbestos area to be available at those dates, simply does not begin to carry home what is necessary for the scope or content of the duty involving as a reasonable response anything necessary to have reduced below the unquantified slight amount it must have been seven weeks bystander exposure – seven weeks bystander exposure. No blue asbestos known. The knowledge at the time, as your Honours are well aware, being that blue was regarded at the time as likely to be that which was implicated in mesothelioma.

So, if we did not get to the statute and if, for that reason, this kind of case could not be the subject of consideration for correction in this Court, then there is, in our submission, a class of litigation following the guidance of this case, where a negligence case will not have been tried properly at all.

BELL J: Mr Walker, more than once in that submission and in the way you frame your special leave question, you refer to the “scope of the duty”.

MR WALKER: Yes.

BELL J: We are dealing here with employer and employee and surely the issue was breach, not - - -

MR WALKER: Yes, yes.

BELL J: Accepting that, when one goes to the primary judge, application book 144 and 145, at paragraph 393, the concerns that you seek to articulate about the generalised nature of the presumption, saying nothing about the levels of exposure and the like, might be thought to be addressed by the findings that the primary judge made.

MR WALKER: Well, no, because, in our submission, the findings that culminate in 393 do not involve any factual footing in relation to a level of exposure below which, according to state of art, it was not unreasonable to proceed. Paragraph 393 may be thought on a first reading to be tending in the direction of but on reflection, surely, does not go the full distance of the extreme proposition that has sometimes been summed up in the slogan “single fibre”.

HAYNE J: But, relevantly, the identification of page 145, line 15, or thereabouts:

The literature indicated that while the dosage and duration needed to cause harm was unknown it may have been satisfied by high dosage of short duration.

MR WALKER: And the plaintiff’s case was not one of high dosage of short duration. That is our point.

HAYNE J: What is relevant is, short duration.

MR WALKER: Certainly, certainly. Low dosage at short duration was not the subject of literature talking about danger. We had what was then known and, of course, the tendency or the temptation to anachronism because of the social problem of asbestos now that it is banned has to be resisted, obviously. Everyone agrees with that but, in our submission, it is not being carried through as it ought in the reading and application of this important statutory provision.

HAYNE J: But does it not then come to there being at least a necessary step, if leave were granted in your appeal, to demonstrate that without regard to the statute negligence was not proved?

MR WALKER: Yes. We have done that by the findings to which we have referred in the written submissions that did not permit any finding – any finding – of exposure over what a body called, evocatively, the National Health and Medical Research Council then regarded in its guidelines as maximum allowable – I stress the word “allowable” – concentrations.

There was either no attempt – that may be unkind but certainly nothing that permitted any fact to be found on an issue on which the plaintiff bears an onus – notwithstanding what section 8 does, the onus is still clear there – which would have allowed the court on the material to say there was an exceeding of a level which, according to state of art that either was appreciated or ought to have been appreciated by BHP, triggered the need as a reasonable response within the meaning of the common law of negligence, to do more than that which it had done.

We stress it has to be shown that something more had to be done. You cannot just jump to say how easy would that have been. This Court time and time again has argued against – has ruled against that backwards argument in the imposition of tort liability.

BELL J: Going back to the primary judge’s finding, it was at 145, paragraph 394, a rejection of the idea that observance of a five million particles per cubic foot, if that is the relevant measure - limit on the available information as appropriate. Then if one goes to Justice Stanley’s recitation of the evidence at application book 207, 208, paragraph 161, one sees an account of the evidence of the conditions in which the respondent was working, albeit, as I understand it, for a relatively short period.

MR WALKER: Yes. Now, what that does not amount to is anything in the nature of a finding of high dosage, short duration, to use one earlier phrase, nor, in our submission, does it show any evidence of falling below that which at the time was the subject of those recommendations. As we have pointed out in our written submissions, in terms of decades after the event, an inquiry being raised as to the sufficiency, wisdom, or if I can use the word correctness, of the NHMRC’s MACs – maximum allowable concentrations – it is of course open with all that hindsight can and should muster, were that the real issue, to say if only it had been different.

Indeed, that is why, if I could take you in Justice Stanley’s reasons in application book 239, paragraph 266, that is why we say that there has been inextricably involved in that fallacious approach to the case this statutory provision that we urge as the occasion for a grant of special leave. In that paragraph his Honour starts by referring to it. It is what he calls the “statutory presumption of foreseeability”.

His Honour says of that which, in our submission, is at first and all subsequent looks a startling proposition, that it “reduces the significance of industrial standards of the time”. We interpolate subsection (2) of section 8 does not say that there is to be a presumption or a reversal of onus or a prima facie position established in relation to the response which the law called for as the reasonable response to that which was known.

Your Honours appreciate how very general the statutory presumption is. It is a dust disease and it is exposure. It does not refer to the plaintiff’s exposure. It does not refer to anything about level and, in particular, it does not set out the fiction that the science had at the time that the law of negligence requires to be considered – putting oneself back in the circumstances then obtaining – it does not legislate the fiction that it was appreciated by those in a position bound by a duty of care that their reasonable response had to be of a certain kind regardless of level. So the evidence to which Justice Stanley referred and the trial judge referred, to which Justice Bell has drawn attention, does not do so.

BELL J: It was evidence that he was working in a dusty environment.

MR WALKER: The trouble with dust, as your Honours know, is there is the dust from the matrix, which is irrelevant and what people see, and there is the fibre which is quite different.

BELL J: And the evidence that the deceased had asbestos sticking to him.

MR WALKER: Quite. That material – bearing in mind that we have been sued for what we did or did not do, doing seven weeks – no one is saying, and no one could say, unfortunately for all of us, that that was the only source of exposure. We must suffer but the converse is we are entitled to a trial of the determination of the issue against us, the seven weeks. I do stress, visual recollection of dust is utterly beside the point; that is the recollection of matrix material because no one is suggesting that what you can see are fibres. In 266, if I can go back to that, what his Honour then goes on to say:

As the review of the literature shows, those standards were promulgated not long after the publication of some of the articles in which the connection between asbestos exposure - - -

HAYNE J: Sorry, what page are you at?

MR WALKER: I am sorry, 239 of the application book, your Honour.

HAYNE J: Yes, thank you.

MR WALKER:

not long after the publication of some of the articles in which the connection between asbestos exposure and mesothelioma was discussed.

Now, we interpolate there. There is no suggestion there, for the purposes of this private law action about this plaintiff and his exposure and his disease and my client’s response at the time, there is no suggestion that there is any element of negligence – I stress negligence – in observing MACs, promulgated by the NHMRC. If that be true, and there is no evidence that there is exposure approaching or exceeding those MACs, then it is, with respect, irrelevant then to speculate about what would have happened had there been conduct by way of precaution. You do not get to that question unless and until it is called for as a reasonable response. Going back to 266, his Honour then went on to say:

The standards reflect an industrial compromise based on the different views of the significance of the connection.

That also could not possibly be seen as his Honour is surely not committing to solecism of after the event and anachronistically and with hindsight, criticising the NHMRC in such a way as to come home for an allegation of negligence against my client.

BELL J: This is nothing to do with section 8(2), this is to canvass the trial judge’s findings, is it not?

MR WALKER: I need to persuade your Honour of the opposite of that. It has everything to do with 8(2) because of the first sentence of the paragraph and also, I am happy to be able to say, the next sentence, the last sentence.

BELL J: I am sorry, Mr Walker, I was not directing your attention to paragraph 266 at that point.

MR WALKER: I am sorry.

BELL J: It was more that the submissions that you are now advancing really go to the question of whether the trial judge’s factual findings at 393 and following were open, and that has nothing to do with the - - -

MR WALKER: I am trying to answer (a) your Honour’s question and (b) hurdle the obstacle Justice Hayne raised at the outset, because if – to put it this way – at common law we are goners, then does it really matter that we have suffered a misreading of the statute? I understand that. That is why I am in an area where it is more than the statute. But it is also, with respect, why I wanted to finish, if I may – I am sorry about the time – with 266, because that is a very important way in which what the evidence rendered available as a finding dehors the statute, and then how the statute may affect that. His Honour said it would reduce the significance of the industrial standards. That is, of what would emerge from what I call a “common law approach”, and in the last sentence his Honour speculates, again in a way that could not possibly be properly held to inform a case of negligence against us, that:

The standard may well have been different if premised on the foreseeability which must now be presumed.

That is, by reason of the effect of subsection 8(2). So it is a critical part in culmination of reasoning of one of the judges, agreed in by the Chief Justice, to the effect that this statutory presumption in a case where it is accepted there cannot be shown to be approaching or accidence of the then understood allowable concentrations, sweeps away or dispenses the court from the need to be concerned with the critical, in our submission, the essential qualities of a finding of negligence, namely that somebody has fallen short of that which was reasonable judged by the applicable standards at the time.

Now, your Honours, it is for those reasons, in our submission, that this is a case which obviously affects more than just the rights and liabilities between the two parties before this Court today. It concerns a case where the guidance as to the application in practice of a very important provision in an important kind of legislation is, it would appear, left in a state of affairs whereby there is no need for any proof of level of exposure, let alone the critically negligent question, that is, the critically negligent conduct of failing to respond reasonably to that which the level in fact posed as a risk. May it please the Court.

HAYNE J: Thank you, Mr Walker. We will not trouble you, Mr Livesey.

There are insufficient prospects of disturbing the actual orders made by the Full Court of the Supreme Court of South Australia in this matter to warrant a grant of special leave to appeal. This would not be a convenient vehicle in which to examine any disputed question about construction of section 8 of the Dust Diseases Act 2005 (SA). Special leave to appeal is refused. It must be refused with costs.

The Court will adjourn to reconstitute.

AT 10.34 AM THE MATTER WAS CONCLUDED