Amaca Pty Limited (formerly James Hardie & Co Pty Limited) v Hannell [2007] WASCA158 and Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Moss [2007] WASCA 162

2 August 2007
Martin CJ, Steytler P and McLure JA

The Court of Appeal in Western Australia considered the liability of suppliers of products containing asbestos to a handyman (in the case of Hannell) and a bystander (in the case of Moss). Both cases were heard together at Trial and on appeal. Both cases involved short term specific exposures to asbestos fibres. The Trial Judge, in both cases found in favour of the Plainitiffs. Amaca, the product supplier was held to owe a duty of care to both plaintiffs who contracted mesothelioma from exposure to Amaca products. The Court of Appeal ultimately held that the evidence did not support a breach of duty and upheld Amaca’s appeals in both cases.

Facts

Mr Hannell (Hannell) was born in the UK in October 1942 and worked as a gardener and then as a horticulturist. In 1981 he emigrated to Western Australia with his family and purchased a house which contained asbestos cement products installed in the late 1970's. Hannell had three incidents of exposure to asbestos fibres as follows:

1. In early 1983 he removed a Hardiplank fence in his backyard using a hammer or screw driver; some planks broke; he stacked and later reassembled the planks, cutting and drilling some; he then brushed and painted the planks. The process took a couple of weekends and a couple of nights.
2. In early 1985 Hannell brushed, sanded, washed and painted the eaves of his house. This work was above his head; the preparation took about one week.
3. In about February 1990 Hannell brushed fences and ridge cappings to remove bird droppings and algae in preparation for painting. The task took a couple of days.

Decision of the Trial Judge

At trial Le Miere J found that by at least 1983, the risk to persons carrying out work (non occupational exposure) on asbestos cement products for limited times and very occasionally, was sufficiently foreseeable to impose a duty upon Amaca to warn such persons against carrying out work which could expose the worker to respirable fibres. His Honour found that this required the affixation of warnings to its products and the placement of regular advertisements in newspapers. He further found that Amaca's breach of that duty caused Hannell to contract mesothelioma.

Court of Appeal Decision

The Chief Justice Martin CJ upheld the appeal and in a joint judgment Steytler P and McLure JA also upheld the appeal but for different reasons.

• Due to the very limited exposure to respirable asbestos fibre occasioned by the work carried out by Hannell his Honour found that the evidence failed to establish that:

1. such exposure caused this mesothelioma;
2. the risk of contracting mesothelioma from limited and occasional exposure as a result of work of the kind undertaken was sufficiently foreseeable at the time the asbestos cement products were manufactured to impose a duty upon Amaca to place warning labels upon them;
3. by the time of Hannell's exposures, it was sufficiently foreseeable to require Amaca to embark upon an advertising campaign directed at those who might undertake work of this kind; and
4. if Amaca had affixed warning labels to its asbestos cement products, or embarked upon an advertising campaign of that kind, Hannell would not have been exposed to respirable asbestos fibre on the three occasions he has identified.

• Martin CJ held that the Trial Judge was wrong to find as a fact that Hannell had not experienced any specific exposures to respirable asbestos fibre of which he was unaware or could not now recall and his Honour was therefore wrong to use that as a basis for rejecting all of Amaca's expert evidence. That rejection of the evidence required the Court of Appeal to undertake its own evaluation of all the evidence given in the case.

• Martin CJ found that the Trial Judge approached the question of causation on the basis that Hannell would discharge its burden of proof if he established on the balance of probabilities that the three incidents of specific exposure already identified had increased the risk of him contracting mesothelioma to any extent above that which will be regarded as falling within the de minimis principle (emphasis added). His Honour found that that may be the law of England, but it is not the law of Australia. His Honour expressly rejected the English approach and endorsed the approach on causation adopted by Spigelman CJ in Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 262.

• Martin CJ found that the Trial Judge erred in law by not making any finding on an issue which was critical to the question of causation, namely, the extent to which those specific exposures (three incidents referred to above) increased Hannell’s risk of contracting mesothelioma over and above the background risk.

• Martin CJ also found that a further error of law made by the Trial Judge was the view which he took in relation to the nature of the evidential burden imposed upon a Defendant once the Plaintiff has established that a breach of duty has occurred followed by injury within the area of the foreseeable risk. In his Honour's view the approach taken by the Trial Judge had the effect of imposing upon Amaca not only the burden of adducing evidence to the effect that the Plaintiff would have contracted mesothelioma irrespective of the specific exposures he had identified, but also approving that proposition on the balance of probabilities. This conclusion required Martin CJ to conduct his own analysis and investigation of the expert scientific, medical and epidemiological evidence which had been adduced in the trial below.

• Martin CJ held that contrary to the findings of the Trial Judge none of the evidence he referred to supported a conclusion that Amaca was aware or believed, during the relevant period, that occasional exposure to low levels of asbestos fibre posed a significant or unacceptable level of risk to health. In his Honour's opinion,having regard to the evidence, the finding of the Trial Judge that it was reasonably foreseeable to a person in Amaca's position that an occasional and casual user of asbestos cement building products would suffer mesothelioma, or other lung disease as a result of undertaking casual work on those products, could not be sustained.

• Finally, Martin CJ held that Amaca did not owe a duty to warn those who like Hannell, might undertake occasional work on asbestos cement products which comprise mainly chrysotile cement. The perception of the level or risk created by such work is not of such a magnitude to impose a duty to warn, let alone a duty to embark upon an advertising program which would have been sufficiently extensive to come to Hannell’s attention. Accordingly his Honour allowed Amaca's appeal and set aside the judgment in favour of Hannell.

Steytler P and McLure JA agreed with the Chief Justice that the appeal should be allowed but for different reasons. They held:

Their Honours agreed with the Chief Justice that the Trial Judge had failed to provide sufficient or adequate reasons as to why he preferred the Plaintiff's evidence to that of Amaca. They observed that in circumstances where the Appellant was the manufacturer of the product, the risk of members of the relevant class contracting the life threatening disease was real, not far-fetched or fanciful, even though the risk of it occurring was extremely low. They held that although the Trial Judge erred in failing to give reason to consideration to the determination of foreseeability issues, he came to the correct result in which event they dismissed the Appellant's grounds of appeal challenging the finding of foreseeability.

Their Honours found that the Trial Judge was correct in his formulation of the scope of the duty of care and they dismissed the Appellants challenge to the Trial Judge's formulation of the duty of care.

Their Honours indicated that they were concerned with an extremely low risk of very significant harm, being death from mesothelioma. They found that the warning suggested by the Trial Judge was a communication to the effect that the product is of such a danger as to suggest it should not be permitted to remain in situ and certainly ought not to be worked on at all. They held that a warning of that nature was not justified by the evidence. By implication they held that there was no breach of duty and they upheld the appeal on that basis.

Their Honours rejected the one fibre theory of causation. They agreed with the Appellant's submission that "none of the medical and scientific evidence supported the theory." Their Honours agreed with the Chief Justice that the Trial Judge erred in rejecting the evidence of Mr Rogers, Dr Francis and Professors Berry and Breslin but they did not accept the Appellant's contention that epidemiological evidence was the only basis for establishing that these specific exposures caused or materially contributed to the Plaintiff's mesothelioma.

Their Honours analysed the issue of causation in the context of the expert evidence. They held that on the evidence the background exposure and the specific exposures were each independent sufficient causes of mesothelioma but highlighted that one question which was not directly addressed by the parties or the Trial Judge is whether they are alternative causes (that is, it must be one or the other but cannot be both) or cumulative causes.

Their Honours examined the test of causation applied in Bennett v Minister of Community Welfare (1992) 176CLR408 but decided that the Trial Judge went further than permitted by the Bennett test by placing an onus on the Appellant to exclude any possibility that asbestos fibres from the specific exposures caused or contributed to the disease. Accordingly their Honours allowed the appeal by Amaca.

• The Chief Judge has distinguished the UK approach which found that in effect a material increase in the risk of contracting mesothelioma equated to a material contribution or cause of mesothelioma. He endorsed the Australian view as expressed in Seltsam v McGuiness to the effect that a Plaintiff must prove that exposure to asbestos has caused or materially contributed to his contraction of mesothelioma. A mere increase in the risk of contracting the disease is not sufficient to satisfy the Australian test on this issue.

• The application of the "one fibre theory" has been seriously challenged in obiter dicta in this decision.

• The decision can be contrasted with the NSW Court of Appeal decision in Seltsam Pty Limited v McNeil [2006] NSW CA 158 which held there was no duty owed in the particular facts of that case which involved non occupational and very low exposures.

• The decision may have significant implications for future Plaintiffs with non occupational handyman or bystander exposure (with low doses of exposure) who may now be denied compensation.

• It may be left to other Courts to reconcile the apparent tension between expert evidence which agrees that there is no known safe level of exposure below which there was no risk of mesothelioma and the finding that a Defendant is not liable for low levels of asbestos exposure.

• Given the potential significance of the decision it may be the subject of a special leave application to the High Court of Australia.

The Court of Appeal approached the Moss case in the same way. It was alleged Mr Moss contracted mesothelioma from some four occasions in 1989 and 1990 when he had limited non – occupational exposure to asbestos as a result of work undertaken by himself on asbestos products and on one occasion as a result of observing work on asbestos products undertaken by another.

The trial judge distinguished between the bystander and handyman exposures holding Amaca had no duty to Moss in the bystander situation. The Court of Appeal rejected this approach holding the duty owed should be the same in both the bystander and handyman situations.

The trial judges verdict in favour of Moss was rejected by the Court of Appeal for the reasons advanced by the Court of Appeal in Hannell.

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