Judgment date: 10 December 2010
Amaba Pty Ltd (under NSW administered winding up) v Booth; Amaca Pty Ltd (under NSW administered winding up) v Booth  NSWCA 344
New South Wales Court of Appeal1
- A motor mechanic's exposure to asbestos brake linings was held to be sufficient to cause mesothelioma notwithstanding epidemiological studies.
- It was observed that by 1953 the risk of exposure to asbestos in an industrial setting where exposure was likely to be encountered weekly, daily or more often, over months or years, and the need to take precautions against the risk of serious injury was well documented.
At the age of 71 years, John William Booth (plaintiff) developed the fatal condition of mesothelioma arising out of his exposure to asbestos. Throughout the course of his life, the plaintiff was exposed to asbestos in both a domestic and occupational capacity. His occupational exposure to asbestos occurred between 1953 and 1983 whilst working as a motor mechanic and whilst handling brake linings which contained asbestos.
The plaintiff commenced proceedings in the Dust Diseases Tribunal of New South Wales against the two manufacturers/suppliers of the asbestos brake linings to which he was exposed; Amaba Pty Limited and Amaca Pty Limited (defendants).
On 10 May 2010, Curtis J delivered judgment in favour of the plaintiff in the amount of $362,640 plus costs.
The defendants filed proceedings in the Court of Appeal seeking to overturn findings made by Curtis J in respect to liability and damages.
Court of Appeal Decision
The 17 separate grounds of appeal are summarised as follows:
- Whether expert evidence called by the plaintiff should have been admitted;
- Whether general and specific causation was established;
- Whether the injury to the plaintiff was foreseeable;
- Whether the defendants breached their duty of care to the plaintiff; and
- Whether a causal link was established between the breach of duty of care and the injury.
Basten JA, with whom Beazley JA and Giles JA both agreed, delivered a comprehensive judgment dismissing the appeal on all grounds.
In respect to the admissibility of the plaintiff's expert evidence, the trial judge was required to consider the epidemiological studies together with the medical evidence in order to determine whether or not the plaintiff's exposure to asbestos brake linings, compared with other causative factors, caused the plaintiff's mesothelioma.
Professor Henderson was qualified by the plaintiff and gave evidence concerning the relative risk of mesothelioma from cumulative exposure to asbestos. Professor Henderson referred to the "Peto Model" which observed that "when there are multiple asbestos exposures, each contributes to cumulative exposure and hence to the risk and causation of mesothelioma, within an appropriate latency interval". Whilst giving evidence, Professor Henderson commented that the "Peto Model" was a fairly well accepted model and it "flies in the face of what used to be called the one fibre hypothesis that mesothelioma came about from a single fibre interacting with a single mesothelial cell which in biological terms is a ridiculous proposition"2
Curtis J accepted the evidence of Professor Henderson that the plaintiff's exposure to asbestos brake linings was capable of and did cause the plaintiff's mesothelioma. In terms of the admissibility of that evidence, the Court of Appeal stated that his evidence must be assessed in light of his expertise; Professor Henderson is an internationally recognised expert on pleural tumours and mesothelioma who has written extensively on asbestos-related diseases.
The defendants argued that Professor Henderson failed to engage with the epidemiological evidence which suggested that there was no causal link between mesothelioma and exposure to asbestos in the course of undertaking brake repairs. The Court of Appeal held that it was open for the trial judge to accept the expert's evidence on the basis that Professor Henderson did not disregard the epidemiology.
The strongest objection taken by the defendants was that the trial judge failed to apply the correct legal test concerning the question of causation. The defendants argued that Curtis J failed to apply the "but for" test on causation and therefore misapplied the test referred to in Bonnington Castings Ltd v Wardlaw3 and Amaca v Ellis4 that is, "what is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material."5
Basten JA stated that the authorities did not support the proposition that Curtis J misapplied the general law test of causation.
In terms of a foreseeable risk of injury, the defendants argued that the trial judge erred in finding that between 1953 and 1962, it was reasonably foreseeable that an automotive mechanic could suffer an injury of the kind suffered by the plaintiff. The trial judge referred to various articles and reports published prior to 1953 which indicated an understanding of the dangers of working with asbestos in manufacturing. He concluded:
Basten JA found that although the evidence in 1953 may not have demonstrated a significant risk to persons exposed to low levels of asbestos dust on rare occasions, such as in the course of home renovations, the risk of exposure in an industrial setting with prolonged exposure was, by 1953, well supported by the evidence.
In considering whether the risk posed by exposure to asbestos dust was foreseeable, Basten JA agreed with the trial judge who noted the need to identify a class of persons who might be exposed to asbestos dust in the course of industrial operations. That approach had previously been accepted in McPherson's Ltd v Eaton7 and Caltex Refineries (Qld) Pty Ltd v Stavar.8 In relation to the defendants' breach of duty of care it was argued that the trial judge made no express finding of duty, nor was the content of the duty determined. Basten JA found that the existence of a duty of care was not an issue in dispute, rather the issue was whether or not injury was foreseeable and this issue had already been addressed.
The appeal was dismissed on all grounds and the defendants were ordered to pay the plaintiff's costs.
The decision has provided a helpful insight into the reliance upon epidemiological studies in toxic tort claims (Seltsam Pty Ltd v McGuiness) and the need for such evidence to be considered together with other expert opinion evidence.
The decision also represents a step away from the "one fibre" theory for mesothelioma claims which is important when addressing such issues as causation and apportionment between multiple tortfeasors.
It is also helpful for victims of asbestos related injuries that the Court of Appeal has found that there was sufficient evidence available by 1953 to demonstrate that there was a risk of serious injury arising from exposure to asbestos in an industrial setting (including motor mechanics handling asbestos brake pads) over prolonged periods.
At this stage it is uncertain as to whether or not the defendants will be making an application for Special Leave to the High Court of Australia.
1 Beazley JA, Giles JA and Basten JA
2 Transcript, 23/02/10, at 95
3  AC 613
4  HCA 5
5 Bonnington Castings v Wardlaw  AC 613 at 621
6 John William Booth v Amaca Pty Limited and Amaba Pty Limited  NSWDDT 8 at 186
7  NSWCA 435 also, see Curwoods Case note of 16 December 2005
8  NSWCA 258 also, see Curwoods Case note of 11 September 2009
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