Third Wave Asbestos Claim

Lo Presti v Ford Motor Company of Australia Ltd (No 2) [2008] WASC 12

• A manufacturer's failure to warn has led to a finding of negligence.

Lo Presti claimed to have contracted asbestosis (a type of lung fibrosis) from exposure to asbestos liberated from brake linings whilst working as a mechanic in Western Australia from 1970 to 1987.

During this period Ford manufactured cars, some of which contained brake shoes and disc pads manufactured by third parties with bonded linings that contained some chrysotile (white) asbestos. Ford also supplied those brake shoes and disc pads as spare parts to dealerships.

Lo Presti successfully argued that Ford negligently caused his asbestosis by failing to warn of the dangers of working with brake linings and of the need to take measures to prevent or minimise the release and inhalation of asbestos.

Ford's duty to mechanics

The court held that Ford owed a duty to Lo Presti to take reasonable care to avoid injury arising from liberation of asbestos from brake linings in Ford vehicles, or from brake linings supplied by Ford, during his work as a mechanic.

It found that Ford was aware of the steps involved in servicing and repairing Ford vehicles and that it was "plainly foreseeable" that the work practices adopted by mechanics may lead to the release of respirable asbestos fibres from brake linings that could cause a mechanic to contract an asbestos disease. That possibility was not far-fetched or fanciful.

The court assessed the existence and content of duty owed by Ford by reference to authorities concerning the duty owed by "manufacturers" to persons using their products, although Ford argued that those authorities were not relevant as it was not a "manufacturer" of the brake linings and Lo Presti was not relevantly an "end user".

The court rejected Ford's argument that foreseeability and duty ought to be assessed by reference to the specific question of the risk of contracting disease from exposure to very low levels of chrysotile asbestos, rather than the more general question of risk from exposure (at any level) to asbestos fibres. Ford unsuccessfully argued that this would have raised important questions about whether:

• the low levels of exposure involved can in fact cause injury and, if so, did or should Ford have known this;

• it was unreasonable in all the circumstances for Ford, as a supplier, to have failed to warn; and
• whether any such failure was causally connected to the claimed injury, including with regard to:
• • the level of risk, in light of scientific evidence that revealed no risk to mechanics above that of the general population;
  • the existence and content of contemporaneous laws regulating employer OH&S obligations, conditions of employment and asbestos dust levels;
  • the state of general knowledge in the public; and
  • the likelihood that proposed warnings would have had any effect.

Breach

Ford was held to have breached its duty of care to Lo Presti by failing to insert a warning in or on the packaging of brake linings supplied as spare parts, to the effect that:

• there is asbestos in brake linings;
• inhalation of asbestos dust fibres can lead to life threatening disease; and
• relevant steps should be taken to eliminate or reduce inhalation of dust from brake linings.

Moreover, the court considered that similar warnings actually given by Ford in some of its service manuals and bulletins did not constitute a sufficient response to the risk. It noted that the risk of life threatening disease to mechanics, albeit very unlikely, called for the giving of warnings in a way which was better calculated to come to the attention of mechanics and their employers. These findings were notwithstanding argument from Ford which included that:

• the risks of asbestos were well known, or ought to have been, to professional mechanics and their employers;
• workplace exposure to asbestos was the subject of regulation and exposure limits were not shown to have been exceeded; and
• there was no evidence that such warnings would have affected Lo Presti's behaviour or exposure to asbestos.

Causation

Substantial expert evidence was lead by both sides about the veracity of the asbestosis diagnosis. This was a critical consideration given that the diagnosis means fibrosis caused by asbestos exposure, rather than one of the many other types of lung fibrosis, and his work on brake linings was the only identified exposure, albeit very low. A controversial and strongly contested interconnected key aspect of the claim was whether low level exposure to chrysotile asbestos as a mechanic is capable of causing asbestosis and, if so, whether it most likely caused Lo Presti's condition.

It was not in issue that Lo Presti was suffering from aggressive and advanced lung fibrosis. Ford argued that a number of clinical characteristics of his lung disease, including early radiological evidence and the rate of disease progression, proved that it was not asbestosis. It said this was supported by the fact that:

1. estimates of his exposure as a mechanic were lower than the widely accepted threshold level below which any resultant fibrosis (ie. asbestosis) would be so mild that it would not exhibit any symptoms; and
2. there exists a substantial body of epidemiological evidence that reveals no increased risk of contracting any form of asbestosrelated disease in mechanics who work on brake linings.

The court preferred the evidence of the plaintiff's diagnosing clinicians who said that the clinical features of Lo Presti's fibrosis could not distinguish it from asbestosis and the most probable diagnosis was asbestosis, given his history of exposure to asbestos (ie. as a mechanic). Further, the court did not consider the epidemiological evidence helpful and accepted their view that, if any exposure threshold exists, Lo Presti's exposure as a mechanic was sufficiently high to have caused his disease.

Ford's breach of duty was held to have relevantly caused Lo Presti's injury and it was found liable. Key elements in that decision included that:

• the hazards associated with asbestos in brake linings, and the need to take protective measures, were generally not appreciated by Lo Presti, his workmates or employers; and
• had relevant warnings been given, they would have come to the attention of the employers and/or mechanics who would have implemented preventative measures and Lo Presti would not have been exposed to asbestos.

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