Document VV8vmvw97RoYMr0L3r7wnB38

" :* >?>?, >v >f?^A ' V; V . >'. ` to c.L.r.8.6. > / .'V ;. : *&v. ..; ; ..-. ,' : *.; . ..{Delete whichever. is not applicable) *?;i -: v : . ;^: yv.,., v;*>, ,.; . V;,l,.v-v.s-v^^.. * 3W rag suraac. COURT . V .' ; .-.-V**. . V :.\- . . .V,. ,* . '. J /. ' : \ 1 ' V. *' ' : *V,`' V'A ?f.V or VICTORIX' 1M7;N0V 4581*,- cte'rail, cooct .* .' v.r;' / H;.. ......>SLBOtisHE,~ h;: ; *V. ( ;k.. -J > \: a . t r, 4 * " . BEFORZ THE HOMODRABLg .HR. 'JUSTICS &ATEJ ^' *. THS ONCXm*BLg HR. JUSTICE VuLIAGAfe and * *' * `T'/, *?.. toque : . ** / ;' . * ' **. : .. B & THS e : c HTOAICO PTT. LTD. and -` / &A0S RABbLT V, S' : Appellant (Defendant5' Respondent (Plaintiff) JUPGMEHt (Delivered 2 0 SEP jggg ' 1988! KAYE J.: This appeal is against that part of a Judgment whereby exemplary damages vere awarded to the respondent (plaintiff) against the appellant (defendant). The action vas tried by a judge and jury. The plaintiff claimed that the defendant negligently exposed hist to asbestos whilst in its employ whereby nany years later he developed malignant mesothelioma. The jury found that there vas negligence on e part of the defendant which was a cause of the Isintiffs illness and it assessed his compensatory amages in the sun of $428,000. The jury also found the JW/SC defendant liable to pay the plaintiff exemplary, damages ^'1\V JTOCMEKT Pi rn v\-" rv,v/ V <o -'St: .)' s% ' s'o . s> Ts S **g>, eVrr WV-004278 which it fixed in the'sua of $250,000. ' * : ;* me plaintiff's case may be suwnarised. as follows. The defendant was the owner or occupier and'the operator of a blue-asbestos-mine and. mill situated at . Wittenoom in the State of Western* Australia. Between, 16ch . July i960 and 20th January 1961 the plaintiff was employedby the defendant in the sine and-in the mill. Although the plaintiff worked in.the mill during the first three months of his employment, It is convenient first to.describe the mine and :its operations J . Asbestos ore was excavated from stopes being horizontal' layers of^ deposits rising to about 4 feet from the working floor of the mine. Access to the stop where the plaintiff worked was gained by an entrance-way or adit situated at the top of the mine, down into and along a haulage-way, and then up a man-way. -he distance from the adit to the scope area was between 300 and 400 metres. Explosives, which were plugged into the holes drilled *in the stope face, blasted off ore comprising asbestos and rock. The plaintiff as a scraper man shovelled the displaced ore from the wall of the mine and from the ground onto a chute. From the chute, the ore was released onto trucks which were hauled by a loco to the mill. The height of the area in which the plaintiff votked in the scope did not exceed 4 feet. The stope was poorly ventilated, air being stale and charged with asbestos dust and dust. Visibility there was limited to IS to 20 feet. Employees were forbidden to use water for supression of dust. 2- JUECMEtfT '.* t JW/SC In'the iil.tfce"*bre wa^ subject*to pJroc^sias'by/;' which asbestos was separated frost rock by. crushing, then dried and reduced into-fibres. , From'a.screening machine; : in which fines were finally separated, asbestos fibres were dropped about 10 feet along a vide and opened, chute to, the . . bagging area. There the plaintiff, and three Others ' manually packed 100* pounds of 'asbestos into each bag ^. .To ensure the content^ were tightly packed,. the plaintiff forced asbestos:into each/bag by means of a wooden club.' As he did so asbestos^fibres flew back onto his face. If the contents of a bag exceeded 100 pounds, he removed by hand excess asbestos.' - rilled bags were sewn up by the plaintiff . * ^e. time taken'to fill a bag was 10 to 15 minutes. The mill was a large enclosed structure in which the atmosphere was Impregnated with asbestos fibres and dust. The floor, and particularly in the bagging area, was constantly dirty and covered with asbestos. Notwithstanding some ventilating equipment, asbestos deposits were present on items of machinery. Holes in machinery, pipes and ducts from which asbestos fibres escaped into the air were covered by or plugged with hessian. The plaintiff was. required to clear away by hand asbestos which from time to time clogged up the chute. Men working in the mill were covered with asbestos which clung to their skin, ears, mouth, nose, hair and clothing. Temperatures in the mill were of the order of 40 degrees. Masks provided for the employees' use were unsuitable because they quickly clogged with dust, restricting breathing. Men working in the mill were not directed by 3. JlflXSKENT V. ' Vi ix <'* 's L: V 1 t' *> jk/sc ttwr, foremen or superior t,o useaasks, and except during ' inspection by health authorities, did not do so. : . . ; *..**.. ' -s- It. was the.bplnion of Dr, J.C. McNulty, a Chest Physician and the West Australian. Mines Medical-Officer.,' that non working in the -provai'ting dusty 'conditions ; and ;. '* manually handling asbestos libtes, w*re *V significant rls* of developing lung disease. " *. 1 " `* m October 1887 the plaintiff was diagnosed 4s suffering from mesothelioma. ' ;" evidence of the existence since alatest the-turn " of the century of a number of medical and scientific. publications and reports concerned with the development of lung disease due to exposure to asbestos was'adduced through witnesses. For present purposes it is sufficient to refer to a small selection from the literature. Xn 1898 the chief Inspector of Factories and Workshops warned of the dangers of asbestos* Xn a report made in 1930 Dr. e.r.a. Mercwother, a Medical Inspector of Factories, and Mt. C.w. rfSee, an Engineering Inspector of Factories, recorded*their conclusion that inhalation of asbestos dust over a period of* years results in development of a serious type 'Of-fibrosis of the lung, and advised that there was need to tax preventative measures. In 1933 Dr, Badhaa, a Medical Officer of the Sew south Wales Department of Health, reported the first case of asbestosis in Australia. Dancet Medical Journal 1938 carried a report by prs. Wood and cioyne showing that of one hundred patients suffering from asbestosIS twelve had died, of whom two had lung cancer- Dr. Welder in the Journal of Industrial Hygiene and Technology 1944. suggested a correlation between 4. JUDGMENT & & I-:--.- m V' i. r . Hi ^ '' y JW/SC asbett<&. and mesotnelioiaa. , In the* Annual Report of the Chief Inspector for 1947; Dr. MerevetAer again drew ' attention to the incidence of cancer In patients suffering from asbestos Is. In 1951-Dr. Gloyne* in `Lancet * .advised that asbestosIs isaj\'Important cause of lung: cancerand. Sir Richard.poll .in J9S5. stressed tAe sane ppijiionv .Jn 1940 Dr. Wagner stated in the South African* Journal of . . Industrial Medicine, that exposure to asbestosis could result in mesothelioma, being penetration of the'pleura by asbestos fibres. * *''*-'*'* : *. ^ ; . .''** -4, ^ ; The defendant was a wholly owned subsidiary*-of CSR. The head office of both companies was .situated ift Sydney where `css had an ` extensive* library .of 'medical / scientific and engineering publications, including some of those referred to in the evidence. Access to the library was available to the defendant's directors and managerial staff. Evidence of warnings of dangers to men wording in the mine and mill at Hittenoom given to the defendant's managerial staff was as follows. In 1944, and within three years of the commencement of the.Wittenoom operations, the defendant was .infoxsxed ..that. Dignun, a aine-empl-oyee, was suffering from asbestosis. In March 1948 Dr. E.G. saint, who at one time was Professor of Medicine at the University of Western Australia and who at the relevant time was Medical Officer for Port Hedland, on his first visit to the mine and mill expressed to one Broadhurst, the then Manager of the mining and milling operations, his anxiety about the risks of workers developing asbestosis from exposure to asbestos for periods of six months. He warned Broadhurst 5. JUDGMENT ' that asbestos!* was. lethal, and that Wittenoom would have V . the* largest epidemic..of asbestosis recorded, in medical - ' >* V. V literature because t.the very heavy exposure of the sen to asbestos in both the Bin', and the nine..-. In 1959 .* ^ Dr.; McNulty, after an inspection of the-mi 11 and mine,- y warned Broadhurst of; the dangers of wjwslng'.&eh:. to. * asbestos and drew attention to the existing'unsatisfactory . working conditions. He discussed with JBroadhurst those employee's of the defendant who had contracted disease, `in i- his report for.the year 1959, presented to both Bouse* of. ' *V ( Parliament; under the sub-heading-"Industrial Chest , DiseaseWittenocwa" Dr. McNulty concluded, inter alias- , ' "The very high lahbur' turn-wes at Wittenooa is ... 7 necessarily associated with a short average exposure per worker and many workers at risk were Protected simply because their exposure time was too short. At least aae of these short-term workers has been diagnosed as suffering from Asbestos is, many years after he left the industry. The problem is essentially one of ventilation conducted with a proper appreciation of the relative importance and medical significance of the asbestos fibre as distinct from the silica particle. Despite the many marked improvements which have been effected at the Mine and Mill, I asftinot satisi*d that the risk of industrial chest (' disease has been eradicated or even brought to par with the risk of Silicosis in the gold-mining industry." Dr. k.o. Brown, who at one time was a Director of both the defendant and CSR, was aware of the contents of this report. By a letter dated 22nd February i960, the General Superintendent of the defendant in Perth informed the defendant's Managing Director in Sydney that at a meeting in Kaigooile the Health Laboratory expressed deep concern that four of the defendant's employees were inmates of the Perth JW/SC 6. JUDGMENT I J .'Chest* Clinic suffering* from asbestos is. The letter continued*- . .. "this is taken by the Laboratory to be Vcondition * of .the industry and'Hr. Brisbane has been more or. less advised to begin .a thorough investigation of ;; the* ventilation: of the mine to determine the 'v -'safety of:'the industry. ^ Brisbane, referred to in. the letter,; was'-the State Hiding'Engineer. " In a letter of 24th June i960 Mr. o.A. Allan, the then Manager of the mill and atine, drew the attention of . the defendant's HWiaging Director In* Sydney ;to extracts . / ( from an ^article appearing in the British Medical Journal . concerning asbestos!s which he enclosed for information. "'Mr. 'Allan 'made the comment that it "was'"quite* an* ` .*'" ~ 1 interesting article and reveals several facts not known to us", under the heading "Asbestos Reviewed*, statements made by Dr. Hugh Jones included the followingj- "Asbestosis is a pneumoconioses arising from the inhalation of asbeseos dust during the manufacture of asbestos goods, such as asbestos sheeting, fireproof clothing, brake-linings, logging for boilers and pipes, etc. ... Asbestos is very toxic and produces not only f pulmonary fibrosis but reactions in the pleura and \ even in other organs. ... There is an interstitial fibrosis, as in the present case, gross pleural thickening and some patchy bronchiectasis. Besides these three features, which are common in asbestosis, there may be associated tuberculosis, as there v&s in this second case, or, even store important, associated lung cancer as in our patient, ... Patients suffering ftcm asbestosis ay die either from the complication of tuberculosis (more common in past years), or more particularly from that of carcinoma of the lung. Those not killed by chest infection of cancer may finally get cor pulmonale. The disease usually makes Its appearance rather suddenly, over the course of a few months, often long after the initial exposure to tho asbestos inhalation. It has been suggested that the JW/SC 7. JUDGMENT *>: nI Mfwm<*.-' i-w. :< if g*8-:-' : ` Vhaf to "ripen"-over'years before it car* break sotheSiOHa. fet ,the pleura;: - tmis rather rare . . * tumour ^'dr^y:*att^irtion-.tO'tfte. tact' that, a patient has worked* in asbestos dust. ... 1 { jv/sc stressed by Dr. Oxer, a Medical Practitioner who was then practising in wittenoote. At the close of evidence. His Honour hoard submissions by counsel for both parties concerning matters necessary to be established by the plaintiff for an award of exemplary damages. In the course of discussion, leading counsel tor the defendant submitted that the evidence did not justify the jury making the award claimed. The learned judge ruled that there vss evidence on which the jury, properly directed, could make an award of exemplary damages on the basis of recklessness. In his charge His Honour directed the jury in relation to exemplary damages as follows "You would award exemplary damages only if you were satisfied that the conduct by the defendant was of a reckless nature, it does not have to be conduct which intended to cause an injury, but reckless conduct in the sense that there was e disregard of the plaintiff's rights and the defendant's obligations. 8. JT/DGMENT  To "be reckless'is to. act in this' way ;; yith .'................. - c- kivowiedge of the dagger , simply not to tare - * < !: :- .whether .the injury would occur-or not. . ,Thdt is . . frtiat is aeant fey.recklessness... In other words,. you are aware, of the risk and the danger of* in .. this case, serious injury to health, and.you. act not caring whether that would occur or not. Put / another way, if you act with' wilful. fe2indnsrS/ ' ' wilfully turning a blind eye to the-problem .and ...............doing nothing about it, once. you. arc put on. -A . notice or on guard.. .That would, be reckless. .hnd ' . if' you were satisfied that the conduct of .the V*'.......... defendant; looked at overall/ was reckless in-"-J this respect, then.you.are entitled to award, exemplary damages^ you would ha*e to consider that-conduct, of that kind was. such, as .to. warrant ?. punishment of the defendant and the aajcing of an example to other people, not just -people, who Were involved in this particular industry; but other - > - ; employees who may be minded to act recklessly In respect to their employees,* " .*' ";* .* *. His Honour's direction was substantially -in-the ' terms which*,earHer leading counsel 'for the 'defendant.*: had ' expressed in his submission concerning matters entitling the plaintiff in the instant case to an awaits of exemplary damages. Before this Court, Che substance of leading counsel's submission was referred to as his concession. later in his charge, the learned judge summarised the evidence relevant to the claim for exemplary damages, and the arguments relating to the claim which were advanced by both counsel in their final addresses to the jury. Acceding to an exception by leading counsel for the plaintiff that be had not adequately summarised cour.seV* a argument in support of an award of exemplary damages. His Honour redirected the jury in these termss- "When I was dealing with [plaintiff counsel's] submission about exemplary damages X put and summarised his submission on the basis of what he put the defendant actually knew. But Z omitted to point out to you that exemplary damages are also open on the basis el deliberate ignorance. In other words, if a person with some knowledge then deliberately keeps themselves ignorant about the real situation, fails to inform itself about what the real situation is. that can be the basis s. juockojt vc Q JW/SC i*>v .v! .\A *. e*. *.** recklessness.. ..si rfeckles&ness can tot either a. >_ /;/ `, deliberate act:vith knowledge.sot caring', about ...... 1 the consequwVo*\ deliberate failure to' infora : gneselves> .in other vords deliberate ignorance/. . . deliberate blindhdsa r think it is sometimes 7*\ ; referred to. So you may bf course deal with that . . .when..you are dealing with ,exemplary damages.;" . ' Some three hours, later, the jury, sought a reminder % ,, of what. in his redirection Hie Honour had. said about ' * t * . , .* * *. exemplary damages. `The learned judge then directed as 'foilows:- " "Exemplary damages, as you will recall, are : awarded if you are satisfied on the balance of ... >: probabilities that the defendant's conduct was *, reckless in the way that I have explained to you. - > li explained to you in the general part of my summing-up,'<when-r. was`directing you on the lew,' that .to show recklessness there, has got to be * . .. . . shown conduct which with knowledge of the risles and :dangers involved there is. a disregard of the consequences. Xn other words you toow that something injurious to health, something of a serious kind will happen, but you do not care whether it happens or not. That is one aspect of recklessness. The other is simply turning a blind eye to matters. When a person either is or ought to be on notice. In other words, not caring to get information which is relevant to the problem, and in that way recklessly disregarding the plaintiff's rights. And it was that part of it that I added at the end of my surging-up, because when X was putting the way [plaintiff's counselJ had put his case I referred tOj.the first aspect o recklessness, a wilful disregard, and X did not refer to the second aspect, that is the wilful blindness aspect, so Z redirected you on that." It was this, His Honour's final redirection, which was the subject of one ground of appeal argued on behalf of the defendant by Mr. Hughes, Q.C. who did not appear at the trial, contending that the jury were thereby misdirected. Mr. Hughes acknowledged that, because of the concession made'' at the trial by the defendant's then leading counsel, it was not now open to Mm to question the correctness of the learned judge's direction that in a personal injury action exemplary damages may be awarded to a plaintiff where the 10. JUDGMENT ;> _c,i u . , 7 '> ."V` f \\ n ( i 3U/5C i f * *. . . V, .v*l ,. ' defendant is iound ^tD;'b?/^siigent causing'inja^aa4-tb 3 reckie&a. Consequently counsel -were at heixd to debate, and it'is not an,,issue, t;or determination in this, appeal". whether, .in .an industriai;accident'. acxion mere'recklessness' by the. employer'is a situation entitling'the plaintiff* * '- employee* to an,.awardipt exemplary .damagesV 'Morobyer. it is not to bo understood that'it is my opinion either that the learned judge's initial direction and penultimate redirection contained a correct statement of iav concerning. exemplary 'damages, or,'that as' a 'matter' of 'law .a "plaintiff - .............; * *.**,. employee in*a negllgerwe^action against his employer is entitled to an award of exemplary damages on proof of reckless* conduct .sisplleiter.;by the! employer. in this connection I am mindful-of authoritative expressions appeari?*g in Stes, v. 3ohn Fairfax s Sons Ptv. Ltd- U966) 117 C.L.ft. 118 at 122, 129-120, 143 and 153-154; X.L, Petroleum (M.S.W.) v. Caltex (Australia) Ptv. Ltd. U985> 155 C.l.R. 448 at 471; Lamb v, Cotopqo 19871 SI A.L.J.R. 549 at 553 and Cotonco v. Lamb Wo. 3 |19861 K.S.K.L.R. 559 at 587. 4 Mr. Hughes submitted that, in his final redirection, His Honour equated recklessness with ordinary negligence when he dealt with the aspect of a person who "either is or ought to be on notice" and "simply turning a blind eye to matters." From those words, it was said, the jury could have found that the defendant, without any knowledge of the risk, acted recklessly if it had deli&ecately not sought information of the risk of injury to which the plaintiff was exposed by conditions in the mill and mine. Underlying the submission was the unexceptionable 11. JUDGMENT >VV" 'IV '**k, ;<*;/' e,. ,.\y: tV" ' t' - /. i-' y; JV/SC ; i '4ssK-' t.A . ........ . notionythat f*iluretor_irifone Itself of* risk of rfury likeiy to be suffered by an-eiqployeo in the course of bis 4.,' ; * ; (i< ' employment aay constitute .negligence,oh a: part, of 't.fxe , ' defendant employer.-.' . . - .............. ........... , ; There appears\ in *.the' passage *o .the * finai direction complained of, expressions, which on examination provide support for:the defendant's.'.submission. *' Thisemerges from His HohoUf fs.` elaboration .of the position - adopted by 'a person, . who' is or 'ought to be . on notice/ in the expression "in other words -f. not.caring to gec informatJon . ',l ` - > which is relevant to*.the problem and in that way recklessly . disregarding the plaintiff*;s rights* That adopted position His Honour; finAlly. preferrefl'to as' *the" wilful blindness aspect.* The jury'night have understood the learned judge to mean that the defendant's conduct was reckless if it, without any knowledge of risk, did not seek information about the risk. Xs I have already noted, a person may be guilty of actionable negligence who either does not Joiov or has not adverted to - whether deliberately or otherwise - the riskjof injury likely to bo suffered by the victim of his tortious conduct. On the other hand, conduct of turning a blind eye to a situation or wilful blindness of it involves a conscious decision upon facts taown to the actor, it follows that for the defendant to have turned a blind eye to the risk of injury likely to be suffered by the plaintiff by exposing him to the effects of asbestos required at least some Knowledge of the risk. And it was upon that knowledge, whatever its degree or extent, the decision - not to seek further information - was not or would not have been made. 12. jtogkow .` .i c jw/sc J V* .. v,V-; . The jury therefore night )vawe'va<itwas taat uis . Honour, vas referring to tfie conduce of a person. Who was / possessed of ..sufficient,. Knowledge of the yisk of iijuryVto * have put it upon .enquiry for the.purpose .;df .better, inforniing himseit;' and that by; deiiberately not, seeking- .further * * *, y'*,-%**. i,\ J ' V* information he. acted recklessly; ; -if His'konckir's . redirection was so.understood, the iury would bays:applied ". it to such evidence establishing that.the defendant .bad some Knowledge of the risk but intentionsiiy withheld, from informing itself better. *' ;'* ' .Whether the Jury so understood His.Honours words is, of course, a natter of conjecture. However, the course of the evidence, the defence adopted by the. defendant'; counsels' final addresses, and other portions of His Honour's direction provide compelling reasons for concluding that the Jury understood His Honour to be referring to the defendant having at least sufficient information to cause it to inform itself further. Evidence to which I refer Included evidence of the existence, over many years before the commencement of the plaintiff's employment, of medical and scientific literature concerning the association betve&n asbestosis and lung cancer with asbestos exposure, reports in the defendant's possession concerning the risk of asbestosis to asbestos workers, the Age newspaper report of 13 January isse of the high incidence of asbestosis among workers handling asbestos, correspondence in the defendant's possession relating to its employees suffering from asbestosis, and verbal warnings of the risk to the health of workers in the mill and mine from the existing unsatisfactory conditions 13. JUDCKOTT 4 * JW/SC 11 ^giyen by Sr;' Saint and Dr. McNulty to Hr., Brbadhti^st, 'ttie . Mine Manager. \(.* ; >v. In hjs eveiopeient. of its', defence^ dcmylng negligence, the defendant.*s leading.counsel argued that the defendant had knowledge of the fact that- asbestosis and onhg cancercaused by 'asbestos *exposure but'because, 11 didnot. have knowledge > of jaesotheiioffsa; injury to the plaintiff -vis not reasonably foreseeable by It. Examination of transcript* of his' final address'.'in relation', to`the exemplary .damages ' claim reveals that defendant's leading counsel, did not urge the jury to find that, the defendant.yas without, any ; > knowledge of the risk of injury likely to be .suffered by the. plaintiff. -Counsel'argued that'measures taken by', the* / ' defendant in the mill and mine^ which he recounted, constituted proof that It had not acted recklessly, in the sense of not caring whether or not the plaintiff would suffer injury. He further urged the jury to conclude from evidence of those matters that the defendant took positive, measures in an endeavour to minimise the risk of which the plaintiff complained. Thus it must have been clear to the jury that the reply to the plaintiff's claim for exemplary damages was 'based upon the premise that the defendant had at least some if not actual knowledge of the dangers to which it was exposing the plaintiff. Argument advanced to the jury by plaintiff's leading counsel was that it was incontrovertible that the defendant knew of the risk of very serious injury asbestosis, lung cancer and mesothelioma - to which it exposed the plaintiff? he dealt at length with evidence of the defendant's actual knowledge. Counsel also dealt with 14. JUDGMENT 4J ;i` the altexnaeiye.pesitifon of 'the 'defendant1 having: some-;' " \ ` Incontradlatinctlon to *,knowledge of .the ,risk-and -it*;' deliberate failure to inform .itseif further,. However, ,like ' defendant's leading Counsel pf.aintifi&\leading:co)aX:<iid not address any argument In connection with, the exemplary ' damages, claim.oo the has is that the defendant was.'-vithouV, / . any know!edge of the risk. -V .-'** In his charge;fehe learned judge summarised .... arguments .advanced ay both'counsel in relation to-the exemplary '-damages. claimed. In doing so he did not advert to a situation of the defendant feeing without any knowledge of. risk or1 danger. Moreover, .examination of his charge does not reveaivtii'at Ris^ Honour, in connection with the requisite v conduct of recklessness, postulated a situation of the defendant having no tocwiedge and deliberately tailing to seek knowledge. Again, in his penultimate direction, the learned judge dealt with the alternative basis of recklessness arising out of some knowledge together with a deliberate decision to remain ignorant of the real danger, in doing^s he used the expressions "deliberate ignorance" and "deliberate blindness" in association with sorse knowledge, it was only when the learned judge gave the jury bis final redirection that any suggestion of reckless conduct without any Knowledge or apprehension of danger or risk of injury was introduced into the proceedings? perhaps by an oversight. Consequently, in the total context of the evidence adduced, the conduct of the plaintiff's case and the defence, the final addresses of counsel and the learned judge's charge, including his penultimate direction, I IS. JUDGMENT JW/SC J -f , ,* .? consider. that'tlk::jury,voi!iia have understood flls Honour to. have ngant by *wilful blindness" the possible situation of the plaintiff having some knowledge of the. risk. I .as fortified , in this conclusion by the conduct of counsel ;/ following His Honour *s; final* redirection; After completing his final address defendant?*, leading counsel withdrew from the trial leaving his junior responsible for. the further conduct1 of the defence.* It appears that defendant's junior counsel was present throughout the hearing. It is clear > that he;'an experienced and competent, counsel/was fully %. aware of the mariner in Which the Issue.of recklessness had been argued by both his, leader and-plaintiff's leading counsel. This ;ls* apparent from the tends of his reply to the plaintiff's leading counsel's two exceptions to His Honour's charge. The trial having occupied 32 sitting days, and having regard to the precarious state of the plaintiff's health, it was in the interests of both parties that the jury should not misunderstand the final direction concerning recklessness given by His Honour. However, neither counsel sought tU> have His Honour clarify further vhat was meant by the phrase "turning a blind eye to matters* and the words "the wilful blindness aspect.* Their failure to do so suggests that both counsel were confident that the jury understood that in the context and implicit in both expressions was some knowledge of the risk of injury. If either counsel was not so confident, it. was not explained why a further redirection was not sought to remove any real doubt. In my view, therefore, it ought not to be assumed that the jury were misled by the language used by His Honour when finally explaining the alternative situation of limited 16. JUDGMENT .i; $& -;VsV .1\ /x<. ) JU/SC - 'knoviWgt together with failure to seek further information entitling the plaintiff to an award of exemplary, damages. \ Howevr, tbis 'conelusiosi per. se .is not sufficiehtf to dispose ot the: ground of; appeal. His Honour's, final explanation of the alternative basis for a finding, .of recklessness was a direction.of.law.. -Being an incorrect . statamentit constituted a misdirection of law. Mr. Hughes contended that hetrig' a misdirection asto.a question of lav, both material and critical to the exemplary damages claim, a miscarriage of justice eayitably occurred? In such. . .. circumstances, counsel continued, the discretion provided by Order 4 Buie 16<2) of the General Procedures of Procedure 1989 ought not to.be invoked toj.save, the; Jurys'verdict. The rule, insofar as relevant, provides "A new trial shall not be granted on the ground of misdirection ... unless in the opinion of the Full Court some substantial wrong or miscarriage has been thereby occasioned in the trial." In Balenzuela v. Se Gail 11953) 101 C.L.R. 226 at 234-236 Dixon C.J. discussed the effects of a misdirection at common law and under the English Rules 1883 Order 39 Rule 6, the provisions of which appear in the same language in Order 4.16{2) of the Victorian 19B9 Rules. His Honour at p.232 stated?- "The difference between the common lav rule and the effect of that provision can easily be exaggerated by over-estimating the operation of the judicature provision in videning the discretion of the court and by under-estimating the effect of the common lav rule in allowing a discretion to the court. In Hoiford c. Melbourne Tramway and Omnibus CO. Led.. cussen J. after referring totheprovisioniaid, *i think that the rule is very little different from the view which was taken by the courts before the Judicature Act. The courts would not necessarily direct a new trial if the misdirection was on an immaterial or collateral setter, or If the trial resulted in a verdict against the person in whose 17. JUDGMENT ( c jw/sc . favour the misdirection operated, or if .the ..' misdirection was in. respect of a pure .gustlon of-;.-' . fact, and the judge's attention was not called to the mistake. But it is an error to thin* there sever can be a wrong or miscarriage unless It. can - be shown that the jury were in fact influenced in ' giving their verdict by a misdirection. There* is . a wrong or miscarriage occasioned by a . ' * misdirection in lav, or as to the application of ' evidence, if, as a final result ofvwhat has been said by...the judge, .the jury, retire-to their room . under a vrong impression in reiatidn'to-these.;.' . . matters, and the result'of the case is such as to show that they may .have bean Influenced in their verdict by the* misdiraction. Miscarriage" is a '.* technical word, and includes this technical. . meaning. The plaintiff *s counsel contended that the onus of showing, the miscarriage is on the , * party asking for the new trial;. I think this is .- clearly right, but. I think that onusj(is satisfied when the facts appear to be as above set out, and . that unless the party opposing the grant -of the ` order for a new trial can point to some further fact, the conclusion that there vas a miscarriage must be drawn.*" After discussing authorities relating to both the CQBffloa law position and the position under the rules His Honour continued at p.234-235s- "Xf the question really be of any importance, resting as it does rather on processes of reasoning than upon proof of an issue of fact, the true view, it may be suggested, is that at common law it was necessary to grant a new trial unless the court felt soma reasonable assurance that the er^or of law at the trial whether in a misdirection or wrongful admission or rejection of evidence or otherwise was of such a nature that it could not reasonably be supposed to have influenced the result or because, in any case, as a matter of law the same result must have ensued, while under the judicature rule the burden is the other way. The form in which the judicature rule is cast seems to indicate an Intention that the court should not grant a new trial unless it reached a positive opinion, in other words unless it was persuaded that a substantial wrong or . miscarriage had been occasioned by the error." The Chief Justice at 235 made the following observations about the operation of the rule*- 'Care must be taken lest in exercising an authority to decide whether en error of law occurring at the trial is likely to have influenced the result, what is really done Is to examine the evidence as ie. JUDGMENT '; / f & s; I- ft. ***>' If.' 'T &r Mr VA w. m- if the court were forming a conclusion of iact for itself. Ttie basal* distinction-between.the count's duty and the function of.the jury cannot be . . ; cpnfused in this way. The question whether,an* . .error of law Bade at a trial calls for .a neu .trial depends on definite considerations involving a - ' legal criterion. Cases hay be put on. one'.side where; although there has been some error of law . committed at. the trial, whether-in the -judge's *< direction to the jury or in his rulings as to.the reception or-rejecti.on of evidence, *the verdict nay be sustainable because'the' successful'party:'in any case is entitled as a matter of law. to such a . verdict or because had a contrary verdict.been . returned it must have been set. aside, : Apart from1 such cases it is;enough if it appears to .the court deciding an application for a new trial that an . error of law has been made at the . trial which stay *.* operate to do any of the following-three things (a) improperly to limit or enlarge tttg evidentiary materials by which it is not ah unreasonable hypothesis to suppose the judgment of the jury might bo affected, even if illogically? or-ib) in the case of misdirection touching standards or . , criteria of liability, wrongly to expose the .party to a hazard that Is appreciable and not illusory of a verdict for or against bin that otherwise might not have been found;, dr <C) in matters of burden of proof, of the legal need of corroboration or of other like incidents of the jury's consideration of the case, to provide an erroneous guidance which is not unreasonable to regard as capable of contributing to the result. These categories are probably not exhaustive but It is enough if a case falls within one of them; if it does it is necessary to treat it as involving a substantial wrong or miscarriage. What has been said relates entirely to misdirection, the erroneous reception or rejection of evidence and other errors of law." The misdirection in the present case, being an error of criteria of liability for claimed exemplary damages, fell within category <b). However, in my opinion, it is necessary to consider the circumstances giving rise ? the error and the context in which it occurred. There is no rule that a new trial will be denied to a party on the ground of an erroneous direction concerning a material question of law where counsel has not sought a redirection. In Hoiford v. The Melbourne Tramway and Omnibus Co,Ud. (1909J V.L.ft. 497 Cussen J. saidt- 19. JUDGMENT V . .. : f - JW/SC If n a material, question the judge gives a. *-. s4sdirectleiita law; or even fails to direct . where It Is his. duty to direct, or misleads the .^ury as. to the^application and limits of the . evidence, the consequences cannot be escaped by ., an attempt to throw the responsibility on to the shoulders of counsel." ~ . The.misdirection of law with which the rail* Court . wascbnceraed .in Vandeloo v. Waltons Ltd. .{1976 ] *V.. R77 ;v&s witliin -category''(b) formulated by Dixon C.J. ift'Balerisueia v. Oe Gail. At the trial.counsel for. the defendant did not object to the misdirection. Gowans J., with whom Mehhenhitt and Dunn'jj. agreed, stated that if a redirection had been > *. sought jand. acceded to; it would have required recasting; of a '.very substantial area of the charge on a critical issue, which might not have been possible in the circumstances. Bis Honour, considered and the Full court held that it was not a case for refusing to set aside the judgment as a matter of discretion under the rule. On the other hand In General Motors Holden's Ptv. Ltd, v. Hoularas [1964] 111 C.L.R. 234 at 242-243 Barvick C.J. stated:- "Without attempting an exhaustive statement, it is established that, generally speaking, a criticism of the summing up which is-capable of being cured at the trial must be taken at the trial and the judge asked to correct it. If this is not done in a case where it ought to be done, a new trial on the basis of that criticism of the summing up will, in general, not be ordered. Again, the matter is not the subject of any hard and fast rule, because the court retains a general discretion and is able in a proper case in the interests of justice to relax the requirement.* The Court was there concerned with the conduct of a defendant's counsel who at the conclusion of the charge brought to the trial judge's attention his omission to have directed the jury when assessing damages for personal injuries to take into account the ordinary contingencies of 20. JUDGMENT I; k'; ' `t y j TV' JW/SC t life. jHhen asked by the trial judge whether he wished the jury to fee recalled, counsel declined to' seek a redirection on the'point. The High Court held that, although >the trial judge had misdirected the. jury. ic the particular circumstances no substantial wrong-or miscarriage had been suffered. , At'243 S^rwick C.3. referred to the requirement that "notwithstanding^ error in the summing up, the court must be satisfied that '.there was a substantial vrong or. .miscarriage* as "the most salutary feature of the rule". ' , Kenzies j.*at 23* coaaideted the misdirection to be a ; t, misdirection of lav adding. *hecause, by reason thereof, the jury were left to. assess damages without the guidance of a complete and correct .statement*.of the way in which the law requires damages*to be assessed". At p,2SS His Honour fiaids- The question for the court of appeal, however, is not whether the misdirection did affect the verdict; it Is, as Cussen 3. said in Holford's Case, whether the jury may have been influenced in their verdict by the misdirection. If so and in the absence of anything else, the misdirection brought about a substantial miscarriage in the trial." * The answer to the question advised by Henries j. might in an appropriate case involve consideration of matters in addition to those falling within the three categories referred to by Dixon C.J. in Ba lensuela v, Pe gall at p.236. The primary of those matters must be the form of the error of law and the verdict of the jury. However matters and circumstances associated with the misdirection In the present case were exceptional; because of those matters and circumstances 3 am not persuaded that there was a substantial wrong or miscarriage suffered by the defendant. In addition to considerations which caused me to 21. JUDGKDJT $/&' : > *:: - V' V. ' %V $V J } 'I' v-. '\ y " '.-w- . conclude that the jury were not likely to have <beeh-sBlsle&& by chej language used inadvertently by His Honour in explanation of ihe.alternative situation fi. limited; ; iciovledge as the basis for reckless conduct/ natters and. considerations which caused me to be so unpersuaded are as follows; Balensaela v. De Gail at p.235 per bixori c/J. . First, unlike the .circumstance existing at the close of the trial'judge's charge in Vahdeloo tf. Waltons Ltd., here the error was capable f correction by a simple statement made to the jury by the learned/judge.' Had his ' ' t, c omissioft been brought,'to his .attention,. Bis floxiour could have overcome any risk of misunderstanding of what he had previously said. He might have done so by reminding the jury that the defendant could have turned a blind eye only if it had at least some knowledge of the risk of Injury to the plaintiff by exposing him to asbestos. Secondly, both in the course of his charge and in his penultimate redirection Bis Honour correctly directed the jury about the alternative basis. c thirdly, when summarising those parts of the .plaintiffs leading counsel's address to the jury relating to the Issue of exemplary damages, he correctly reminded the jury that the plaintiff's case was that the defendant had actual knowledge of the risk ox at least some knowledge. 6lScOTt^<^^^^^r\C^Qfginfo^^matjdh^cpqce^ning-,tfw-<risks &3^SsE*eapioyee^8^sgexpo6ed^|^h|BBlJa>'^nd^g^aj W2h*t JV/SC jUbCKorr Cs^n/^ocuS >*<<<7*43 $V TH6 ur&fr*r fb* th !;*tji< ^g3a^^g%^^^^gtgpg3^icontraryi^^at;ha?e'beeg^ t--r ---^giiabiy .again--st;thI e ?' g?A"id" enee...a..n...d....t..h..e.... .w...e...i.g...ht of""t^h^e^. 11-- I evidence. Sot being persuaded that a substantial wrong or miscarriage was occasioned by the error, I an of the opinion . that the Full.Courts power under the rule ought not.to.be 'v '. .*/. ' ;v , f, ','- exsrcised, and that a new trial' on the ground of - misdirection should be refused. : I The further ground of appeal relied upon by tne defendant was that the learned trial judge failed to direct the jury adequately or at all as to the evidence which they were entitled to consider on the issue of exemplary damages. The complaint made under this ground was based upon the following statements appearing in Hoiford*s case. At p.510 Madden c.j,, speaking of a function of the judge during a trial by jury, made the following comment:- In say opinion, the duty of stating to the jury the issues to be tried, and of presenting to them thg principles of lav by which the evidence should be applied to those issues, and of preventing the jury from cbnfouading collateral issues with those.which should be determinative of**the action, rests always on the judge alone, and he is bound to give a sufficient direction in these respects, whether counsel reminds him of them or not.* Cussen J. at p. 522, in connection with the sane matter, said:- When the parties have finished calling their evidence and addressing the jury, it becomes the duty of the judge to direct the jury with regard to the issues or to the questions, and with regard to the evidence applicable to the issues or questions which, having regard to the pleadings and to the course of the trial, are matters, proper for the consideration of tft* jury. Where.a general verdict is asked for, some 23 JUDGMENT i * t v ' ^ jw/sc direction in lav Is necessary, though where special questions are asked there may possibly be no direction in law to give. But.whether the eras is one of a general or a special verdict, if any question of lav is nixed up with the facts it is the imperative duty of the judge to give such a direction as will enable the jury to appreciate the proper effect of the evidence given, and to apply the lav to the facts so that by the joint labours of both justice nay be attained. h fuller direction is required if the evidence is complicated of the subject is one with which the jury cannot be expected to be familiar. It la equally the duty of the judge, where the circumstances render it necessary, to state the Units of the evidence given and its application to the issues or questions, or, at all events, it is his duty not to mislead the jury as to such limits or application. This statement may in some circumstances be very general, tod the failure to maXe any statement may possibly not be a ground for a new trial unless attention is called to it at the time." The foregoing citation contains an expression of Cussen J. to which Dixon, Williams, Webb, -ruiiagar and Kitto W. referred in Mford v. McGee U*52) 85 c.L.R. 437 at 466 in the following passage of their Honours joint judgment "It may be recalled that the late Sir Leo cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the lav to the case before them. We held that the law should be given to the jury .not merely vih reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for then to ~xnow was so such as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility of deciding what are the real issues in the particular case, and of telling the jury, in the light of the lav, what those issues are." In the present case, the learned judge, in the course of his charge, by his summary of evidence and reminder of those parts of the addresses of both counsel, made clear to the jury how evidence of facts was applicable to the relevant law. t refer briefly to the following 24. JUDGMENT t t mattery concerned with fcho issue of exemplary damages-^T* ' appearing in the transcript of his charge. t * The learned judge explained to the jury in clear terms the difference between compensatory and exemplary damages, the nature and purpose of exemplary damages, sjv& the requirement of an award of exemplary damages for the defendant's conduct to be of a reckless nature. He then, as appears from the passage of his charge which X have set out earlier in this judgment, elaborated on what was meant by, reckless. His Honour directed the jury to consider whether the defendant's conduct was such as to warrant punishment and exemplification to others. He explained that it was the conduct of those discharging managerial functions, including Messrs. Brown, Mian and.Broadhurst, being supervisors, managers and directors of the defendant rather than fellow workmen and foremen which was relevant conduct. He then directed that although the standard os proof was a civil standard, the seriousness of the allegations and the consequences of an award required very special care to be taken when examining the conduce of the defendant before reaching a conclusion, if it did, that exemplary damages ware -appropriate. In the course of summarising evidence presented by the parties, the learned judge recounted evidence which related to the defendant's knowledge of the unsatisfactory conditions in the mine and mill, other evidence which related to the defendant's knowledge of the risk of disease to Its workmen by exposure to asbestos, and evidence of improvements made in the working conditions. TAJ SC JUDGMENT i ' J. k When reminding the jury of submissions made by . Plaintiff's counsel la his final address,*Bis Honour drew j attention to references Bade by counsel to evidence of conditions existing in the mill and Bine, of inadequate equipment uaed to extract dust end asbestos dust, of the defendant*s knowledge of those conditions, of the defendant's actual knowledge of the significant risk of lung cancer and asbestcsis from exposure to asbestos fibre, and of the defendant's conduct while possessed of such knowledge. His Honour then suaatarised the Banner in which plaintiff's leading counsel subaitted thatEvidence of those c and other matters.related to the exes$>lary damages claim. In the course of his summary of the defendant < counsel's final address, the learned judge reminded the jury of counsel's enumeration of,several specific innovations Bade, precautions taken,-'improvements in the working conditions introduced and capital costs expended in effecting such vork. Bis Honour also restated defendant counsel's submission that :the evidence of those matters * c should cause the Jury to * conclude that the defendant did not conduct its operations with .reckless disregard for the plaintif+% eafwty, From the totality of His Honour's charge it would have been abundantly clear to the jury what evidence led by both parties related to the exemplary damages issue, and how they might apply such evidence, if accepted, to the law relating to exemplary damages as explained by him. In addition, during the hearing of evidence His Honour instructed the jury what was the limited application JW/SC - -fir A-r ' : 26; JUDGMENT . \ i -:V r- 1 r'Vvsmv -..'*** . '*.??* W- ' i '* ' ' periisii&le'b'f' eviaenco gives by particular witnessesV7 ' ghl- . , "* *, ->. *!/ 3dry v^re therefore adequately directed in those respects. i For the foregoing reasons X would dismiss the appeal with costs. CERTIFICATE I certify that the 2 preceding pages are a true copy of the reasons for judgment of Kaye J. of the Full Court (Kaye, Fullagar and Teague of the Supreme Court of Victoria delivered on DAg^ this Qo day of ^v. . . 19*=/-. Associate fe;. fA i:*. ii-t- //,!v 3Si |'-;v pfe' Jf$2' f;|- pS & M' ^fc'SS- '> jV' .?*i ficA-ayV JUDGMENT-^ *X*K S#*; % fe