The recent decisions of Amaca Pty Limited (under NSW administered winding up) v Moss  WASCA 162 and Amaca Pty Limited (under NSW administered winding up) v Hannell  WASCA 158 show that breach of duty and causation are still difficult to prove in dust disease cases.
Mr Hannell was born in the UK on 23 October 1942. He emigrated to Western Australia in 1981. In October 2005 he was diagnosed with malignant mesothelioma. The only exposure to asbestos that he could remember was when he worked with asbestos cement (AC) products at his home on a number of occasions between 1983 and 1990.
Mr Moss was born in the UK on 16 August 1927. He migrated to Perth in 1989. He was diagnosed with mesothelioma in November 2005. The only exposure to asbestos that he could remember was when he worked with AC products at his home on four separate occasions between 1989 and the early 1990's.
Both Mr Moss and Mr Hannell alleged that they had contracted mesothelioma as a result of the negligent exposure to asbestos dust and fibre.
On 4 April 2006, the Supreme Court of Western Australia ordered that both matters be heard together on the basis that the liability issues in each action were similar.
Trial Judge's Findings
Le Miere J held that Amaca owed a duty to take reasonable care to avoid injury being suffered by Mr Hannell and Mr Moss as home 'handymen'. He found that the labels placed on Amaca's AC products after 1979 were inadequate to discharge this duty.
Le Miere J found that in addition to using appropriate warning labels on their products, Amaca also had a duty to advertise in the mass media so as to communicate to persons in the same class as Mr Hannell and Mr Moss the risks associated with exposure to asbestos.
Le Miere J found that Mr Hannell's and Mr Moss' exposure contributed to the risk of them both contracting mesothelioma. Despite failing to describe the extent to which the risk had increased, Le Miere J found that both Mr Hannell's and Mr Moss' exposure materially contributed to them contracting mesothelioma.
Amaca appealed both decisions on the following grounds:
- The trial judge had erred in concluding that a 'background' risk from exposure to asbestos dust and fibre did not apply to Mr Hannell and Mr Moss.
- The trial judge had failed to correctly apply the law in relation to the determination of causation.
- The risk of contracting mesothelioma for persons with exposure similar to Mr Hannell's and Mr Moss' was not foreseeable.
- Any failure by Amaca to affix sufficient warning labels to their AC products or embark on an advertising campaign was not causative of Mr Hannell's and Mr Moss' contraction of mesothelioma.
Background risk from exposure to asbestos dust and fibre
'Background' exposure refers to exposure to asbestos from the general environment. Martin CJ found that the trial judge had erred in finding that both Mr Hannell and Mr Moss had had no exposure to respirable asbestos dust and fibre other than on the occasions identified in evidence.
Martin CJ ruled that cross-examination could never establish, as a fact, that a witness had had no other exposure other than that of which he or she could remember.
The background risk of the contraction of mesothelioma therefore applied to Mr Hannell and Mr Moss. As a result, they needed to prove that their specific exposure materially contributed to their contraction of mesothelioma above and beyond the risk associated with background exposure.
Principles for determining causation
The trial judge had approached the issue of causation on the basis that Mr Hannell and Mr Moss would discharge their burden of proof in establishing causation if they could prove that their exposure had increased the risk of contracting mesothelioma above what would be regarded as de minimus.
Martin CJ ruled that this was not the law in Australia. He referred at length to the judgment of Spigelman C J in Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 264. Martin CJ found that the extent of the increase in risk occasioned by the specific exposures needed to be established before a finding of causation could be made.
He found that the evidence relied on by Mr Hannell and Mr Moss only demonstrated an increased risk of contracting mesothelioma. The evidence did not prove on the balance of probabilities that the exposure had materially contributed to the mesothelioma. The Court of Appeal was unanimous in finding that Mr Moss could not prove that his handyman exposure was causative of his mesothelioma.
In relation to Mr Hannell, Martin CJ held that asbestos exposure did not make a cumulative contribution to the contraction of mesothelioma. Rather, each exposure simply increased the risk of the contraction of mesothelioma due to the presence of a larger number of individual fibres in the lung.
This is contrary to the joint judgment of Steytler P and McLure JA who found that Mr Hannell's exposure was causative of his mesothelioma. The basis for their opinion was that the medical evidence established that each exposure made a cumulative contribution to the mesothelioma.
Risk of contracting mesothelioma was not foreseeable
Martin CJ found that the risk to persons in the same situation as Mr Hannell and Mr Moss, being handymen with direct and bystander exposure, was considered to be within the scope of an acceptable level of risk.
This is contrary to the joint judgment of Steytler P and McLure JA who concluded that Amaca knew or ought to have known that any exposure of a kind experienced by Mr Hannell and Mr Moss was capable of causing an injury such as mesothelioma.
Failure to affix warning labels, advertise and causation
Martin CJ found that warning labels affixed to Amaca's AC products would not have been visible to Mr Hannell at the time he was exposed to asbestos. Therefore, Amaca's breach of duty in failing to affix warning labels could not be held to have been causative of Mr Hannell's mesothelioma. He also found that Mr Hannell was unlikely to have read or heard about the risks of exposure to asbestos dust and fibre if Amaca had advertised these risks in the mass media. As such, a failure to do so was not causative of Mr Hannell's condition. Steytler P and McLure JA agreed that a breach of duty by Amaca with regards to warning labels would not have caused Mr Hannell's mesothelioma.
Steytler P and McLure JA also found that advertising in the mass media was not appropriate for the conveyance of the relevant information to persons such as Mr Hannell and Mr Moss.
The differences of opinion between Martin CJ and Steytler P and McClure JA in relation to foreseeability suggest that this area of the law is still malleable. The judgment of Martin CJ suggests that the medical evidence up until the early 1990's supported the suggestion that a minimal amount of exposure to asbestos did not increase the risk of contracting mesothelioma.
The most significant difference between the judgments lies in their treatment of causation. Martin CJ ruled that both Mr Hannell and Mr Moss had failed to prove that their increased risk of contracting mesothelioma was, on the balance of probabilities, causative of the mesothelioma above and beyond that of their background exposure.
In making such a finding, Martin CJ made a detailed analysis of the relevance of the expert evidence. He found that despite assertions by some of the experts that Mr Hannell's risk of contracting mesothelioma had been increased, no evidence was provided to suggest that the increased risk was causative of his mesothelioma.
Steytler P and McClure JA did not follow Spigelman CJ's judgment in Seltsam Pty Limited v McGuiness (2000) 49 NSWLR 264 in finding that any exposure which is not de minimis makes a material contribution. The discrepancies between the judgments suggest that there is still room for argument in relation to causation involving exposure to asbestos dust and fibre and other toxic substances.
Application For Special Leave To The High Court
Both Mr Moss and Mr Hannell sought special leave to appeal to the High Court. The applications were refused on 24 October 2007 by Gleeson CJ and Heydon and Kiefel JJ who noted that there was an insufficient likelihood of the appeals being successful.
In relation to Mr Moss, Gleeson CJ referred to the Court of Appeal's decision on causation as being highly fact specific, and that the case did not raise an issue suitable for special leave to appeal to be granted.
Mr Hannell sought to reopen the question of whether, in circumstances where death is an accepted probability, Amaca should inform the public in carrying out its duty as a reasonable manufacturer. Mr Hannell proposed that in circumstances where death was known to result, a court must find that a breach of duty had occurred in cases where Amaca did nothing.
Amaca submitted that Mr Hannell would fail to overturn the Court of Appeal's decision as the risk of injury was so low so as to make an advertising campaign unnecessary. Its second submission was to reiterate the fact that such an advertising campaign, if it proceeded, would not have come to the attention of either of the plaintiffs.
In making his decision to refuse leave to Mr Hannell, Gleeson CJ noted that the Court of Appeal had applied the correct law to the facts of the case in finding that Amaca did not breach its duty of care to Mr Hannell by failing to advertise in the mass media. He noted that the case did not raise a novel principle of law and found that both cases were fact specific and did not necessarily stand for binding legal authority.
Moss -v- Amaca Pty Limited (Formerly James Hardie & Co Pty Ltd)  WASC 311 (http://www.austlii.edu.au/au/cases/wa/WASC/2006/311.html)
Hannell -v- Amaca Pty Limited (Formerly James Hardie & Co Pty Ltd)  WASC 310 (http://www.austlii.edu.au/au/cases/wa/WASC/2006/310.html)
Court of Appeal Judgment:
Amaca Pty Limited (formerly James Hardie & Co Pty Ltd) -v- Moss  WASCA 162 (http://www.austlii.edu.au/au/cases/wa/WASCA/2007/162.html)
Amaca Pty Limited (formerly James Hardie & Co Pty Ltd) -v- Hannell  WASCA 158 (http://www.austlii.edu.au/au/cases/wa/WASCA/2007/158.html)
Special Leave Application (Transcript):
Moss and Hannell v Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd)  HCATrans 626 (http://www.austlii.edu.au/au/other/HCATrans/2007/626.html)
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