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The Wittenoom judgments by David Ashley Q.C. Reasons for judgment, handed down by Rowland J. in the Supreme Court of Western Australia on 4 August 1988 in favour of the plaintiffs and against the defendants, brought finality (at least at first instance) to the longest civil trial ever conducted in that State. Ttie trial ofthe actions (heard together) in Barrow v. CSR Limited GfAnor and Heys v. CSR Limited & Anor commenced on 19 November 1987 and concluded on 14 July 1988. It occupied 132 sitting days, and the transcript ran beyond 11,000 pages There were some 750 exhibits, many of them volumes rather than individual papers. In the course of the trial leading counsel for CSR Ltd., D. K. Malcolm Q.C., was appointed Chief Justice of the Supreme Court ofTOstera Australia. He retired from the case and was replaced by Tom Hughes Q.C. So also, one of the junior counsel for the plaintiffs, R. J. Viol, was elevated in the course of the trial to the District Court Bench. In all, fourteen counsel appeared for the various parties. Mr Heys died on Good Friday, 1988. His claim was pursued by his estate, and a claim by the widow and children under the provisions of the Fatal Accidents Act wasraised. The trial had about it, as I reflect, some of the features attributed by Dickens to Chancery Practice in Bleak House. THE CLAIMS Each of the plaintiffs sued the defendants for damages for personal injuries. The actions were framed, essentially, in negligence. So much would place them in parallel with many thousands of actions brought throughout the common law world. But the actions were conducted in a milieu, and raised issues of fact and law that went beyond the common experience. THE MILIEU Each of Messrs Barrow and Heys had worked at the Wittenoom blue asbestos ming and mill -- Mr Barrow for about three yean between 1948 and 1951 and Mr Heys for about two months in 1955. Each of them had contracted the tumour pleural mesothelioma, a tumour rare in the ordinary community but regrettably much less rare in persons with exposure to blue asbestos. It is a tumour two of whose important characteristics are a long latent period (anything between 15-40 years) from first exposure to development of disease, and a short period (the mean is about 8-10 months) between diagnosis and death. It is a tumour which is, for practical purposes, untreatable. There was really no argument that the mesotheliomas contracted by the plaintiffs were attributable to their employment at Wittenoom. Beyond the plaintiff^ however, some 6,000 persons had worked at Wittenoom in the period of operation of the mine and mill (between late 1943 and December 1966), and more than that number again had been inddentially exposed to inhalation of blue asbestos fibre -- as wives or husbands or children of those employed. At the time when Messrs Barrow and Heys went to trial a large number of former employees and residents had contracted diseases allegedly by reason of that asbestos exposure -- not only mesothelioma, but also lung cancer, asbestosis and non-malignant pleural thickening; a substantial number ofactions (around 400) had been commenced. Moreover, because of the latency fector -- not only in the case of mesothelioma, but also with lung cancer -- it could be safely predicted that many more instances of Wittenoom-caused disease would arise in the future. While each action -- those on foot and those predicted -- would have its own individual facts, the actions brought by Messrs Barrow and Heys raised issues fundamental to all actions; and they raised the accuracy of recall and credibility of certain witnesses for the defendants whose evidence would likely be common and important to the defendants in the litigation generally. The plaintiffs went to trial with actions well prepared on liability and suffering from a diW** inescapably linked with their exposure at Wittenoom. Two other cases had earlier got to trial in Western Australia in actions brought solely against the employer. Each had foiled, in 1979 a Mrs Joosten, suffering from mesothelioma, had foiled to establish breach of duty by the employer. Looked at in 1987/88, the evidence in support ofher action was much thinner than the evidence assembled for trial in the case of the plaintiffs. In 1987 1188 a Mr Simpson had foiled, the trial judg; finding that his lung disease, claimed b him to be asbestosis, was not asbestos related; the trial judge then not dealing with the negligence issue at all. It was almos certain, in my view, that the Barrow anc Heys' actions were the last chance biplaintiffs to succeed in actions arising ou of Wittenoom in Wstern Australia. Monr shortages alone would very probably hav< precluded prosecution of other actions. In their actions the plaintiffs sough damages not only from their employer a Wittenoom, Midalco Pry. Ltd., but alsfrom CSR Ltd. The basis of the dair against the latter will be referred s subsequently. The claim against CSR wa ofimportance to the plaintiffs, and to mar. other prospective claimants, because ; appeared that Midalco did not have fu' insurance cover against common la^ damages awards for employment ofworker at Wittenoom prior to 1959; and it is company now without any significar. assets. Bearing in mind that the Wlrasnoor mine and mill operated between late 194 and December 1966, foilure to implica: CSR would likely have left very man plaintiffs or prospective claimants with th prospea of nearly barren judgment Whether or not CSR had insurance s relevant times was not really important. 1 has the assets to meet judgments. The actions were tried before a judg alone. That is the almost inevitabi situation in Western Australia in person: injuries cases. The Rules of Court mirrc the English position. In the eastern State manufacturers and employers have becoir very reluctant to litigate cases of asbesto related disease to a conclusion. Jury tria have not proved a favourable environmer for defendants. But in Western Austral there was no such ethos. Indeed, the foilu: of earlier actions was a serious impedimei -- albeit that they had been -resolved c their own fects. lo this should be added tf observation that the mining industry ; Western Australia has been and remains < very great importance to that State. 71 actions arising out of Wittenoom involve an attack on the conduct of an aspect ofth Law Institute Jourr David Ashley Q.C., a member of the Victorian Bar, led, with Daryl Williams Q.C. of the W.A Bar, for the plaintiffs in the case discussed. industry which involved not only the employer, but in an oblique way the action or inaction of certain government departments. This- provided an undercurrent during the trial addressed on a number of occasions by the trial judge. The actions involved an investigation of knowledge, beliefs and conduct of persons occurring some 33*44 years ago; in circumstances where memories were dimmed; and where documentation relating to the conduct ofthe mine and mill was imperfect. It was easy for former workers to recall and describe dustiness in the mill and its surrounds. But it was more difficult to identify what plant and equipment had been in place at different times -- so as to enable evaluation of the adequacy or otherwise of the operator's response to the dust menace. Few workers had stayed long at Wittenoom; the mean period was-about four months. Few workers had been concerned with installation or maintenance ofplant; most, particularly in the mill, had been process workers -- not really concerned to identify what dust control equipment (ifany) was in place, and how it was working. The plaintiffs' case as to what dust control equipment was present from time to time, and how it was working, was therefore necessarily developed by reference to company, Mines Department and Health Department records and correspondence -- which on occasions were apparently contradictory, whereas the case for the defendants on the safeguards issue was centred upon the (document-assisted) recollection of former senior company engineers, who proclaimed a recall based upon expert evaluation of equipment at the time. One of the important tasks for the plaintiffs was to demonstrate the inaccuracy and selectiveness of that recall. THE MAIN ISSUES AND THEIR RESOLUTION NEGLIGENCE: The plaintiffs alleged that Midalco (called Australian Blue As bestos Ltd. (ABA) at relevant times) owed a duty of care to them, and ABA admitted that it did so. The plaintiffs further con tended that, by reason of "proximity," CSR owed them a duty of care; alternatively, they contended that the relationship be tween CSR and ABA was such that the "corporate veil" should be lifted so as to enable a finding that the actions of ABA were the actions of CSR. CSR denied that, in either way, it owed a duty of care to the plaintiffs. The plaintiffs relied upon the same breaches in the claims against ABA and CSR. Given the existence ofa duty ofcare, that duty was to take reasonable care to avoid a foreseeable risk ofinjury to each plaintiff. The standard of care was that appropriate to employment in the late 1940s-mid-1950s, but differences between present-day standards and those ofthe times should not be exaggerated, as the trial judge said, relying on the majority judgment in Bankstoum Foundry Pty. Ltd. v. Braistina (1986) 65 ALR 1 at 7. The plaintiffs' cases were that, in the context of serious dangers to health that were or should have been foreseen by the defendants, the defendants foiled to reduce the dust hazard and otherwise alleviate risk of harm. The plaintiffs contended that "serious dangers to health" included asbestosis and lung cancer, each ofwhich, it was said, was a recognised consequence of asbestos exposure before either ofMessrs Barrow or Heys came to be employed at Wittenoom. The plaintiffs drew attention to the focr that instances of mesothelioma had been included in lung cancer statistics pre-1950, but conceded that mesothelioma had not been, prior to the conclusion of Mr Heys' employment, identified as a distinct lesion particularly related to blue asbestos inhalation. The plaintiffs contended that, even taking account of minimum risks to health, conceded by the defendants as being known to them at relevant times, there was failure of reasonable care by the defendants; a fortiori where the dangers that should have been apprehended were greater than those with which the defendants admitted a familiarity The defendants' case on this issue was to say, on the one hand, that all that could have been done to reduce the dust hazard had been done, particularly bearing in mind the necessary dry-milling requirement with asbestos treatment, and that their conduct was the more reasonable because their knowledge of the dangers to health of asbestos exposure -- being less than the plaintiffs contended was appropriate -- was the proper standard of knowledge of the day. In particular, the defendants' position was to contend that lung cancer at relevant times was related to asbestos exposure only in a speculative way, and that neither asbestosis nor lung cancer was believed to occur without long and heavy exposure to asbestos -- an exposure rarely encountered at Wittenoom because worters stayed for short periods only. It was said further that literature of rite day identified hazards in the manufacturing phase ofasbestos, rather than in its mining and milling, where the percentage of asbestos fibre in dust created would be less. The teamed trial judge, in response to the competing arguments, said: "The overwhelming impact ofthe evidence ... is that, insofar as dust collection is concerned, there was too little undertaken, and what was done was mo late and there was almost always insufficient equipment on site or installed capable of doing the job". He found that equipment and techniques existed as would have enabled the defendants to control dusts to then acceptable limits; and that there was a then acceptable limit, being much less than the standard which the defendants set themselves. He was critical of failure of enforcement of use of respirators at the dustiest workplaces, and of failure of warning of workers of health dangers and of instruction and supervision in dustreducing work practices. As to an argument for the defendants based on the geographical remoteness of Wittenoom, His Honour said: "... I do not understand how the geography and isolation could affect the proper design of manufacture of equipment. I find that dust collection equipment was simply not a priority." His Honour rejected arguments that the conduct of the defendants could be adjudged reasonable by the standards of the day because relevant government departments did not seek to close down the mine or prosecute its operators; and because the main union did no more than seek a dust allowance for the workers. His Honour found further that the defendants' knowledge of asbestos hazards was quite deficient by the standards of the day; that there had been a failure of enquiry, where enquiry should have been made and would have been revealing; and that actual warnings of asbestos health December 1988 1189 hazards given in 1948 and subsequently, had not been followed up. FORESEEABILITY OF RISK: A defendant may be liable though he could not be expected to foresee the particular injury which eventuated but merely the class of injury of which the injury actually suffered is an instance; see, e.g. Mt. Isa Mines Ltd. v. Fusty (1971) 125 CLR 383. A convenient formulation is whether the injury suffered is of similar class, type or character to injury that would be foreseeable. Pleural mesothelioma had not been identified as a discrete disease particularly attributable to blue asbestos exposure at relevant times. The main "foreseeability" issue was thus whether mesothelioma was of the same class, type or character as asbestosis and/or lung cancer; a subsidary issue was whether the class, type or character formulation could be applied to a disease whose existence was (largely) unknown at the time of negligent exposure. A huge volume of evidence was directed so comparison of cell types, pathology, sites of damage, responses to treatment, life expectancy, latency periods, smoking effect, to mention only some ofthe areas of enquiry. His Honour ultimately held that lung cancer and mesothelioma were of similar class, type or character; as were asbestosis and mesothelioma. He rejected distinctions relied upon by the defendants as being too narrowly drawn. In particular he rejected an argument that a The Victorian Government Printing Office Dial Your Order Service The next time you require legislative materials why not use the DIAL YOUR ORDER SERVICE specifically catering to those within the legal profession. A quick two hour delivery service is available to those in the Melbourne and Metropolitan area. Telephone (03) 326 6240 or 3266247. Rix (03) 3284917. (Minimum credit purchase $10.00.) > /(ct&riCL*aaOWW6TQCCTHO| distinction should be drawn because mesothelioma tends to occut more frequently than does asbestosis or lung cancer with a low exposure dose. CAUSATION: To succeed, the plaintiffs had to show that the negligent exposure was a material contributory cause of their mesotheliomas. R>r the defendants it was contended that very low exposure doses may cause mesothelioma. So that, even had the defendants abided by the standards for which the plaintiffs contended, there would still have been exposure sufficient to produce mesothelioma. The plaintiffs' case was that mesothelioma is dose-related, in the sense that the higher the exposure, the greater the risk of contracting the disease; that in the cases of Messrs Barrow and Hcys the negligent exposure was so great that it should positively be found to have caused their tumours; or, alternatively, that causation was made out as a matter of probability based upon negligently increased risk. See, e.g. McGhee v. National Coal Board (1972) 3 All E.R. 1008; and Wilsher v. Essex Ana Health Authority (1988) 2 WLR 557. His Honour; upon the frets, was satisfied ofproof ofcausation in the case of each plaintiff. LIABILITY OF CSR: CSR was incorporated in the mid-1850s. In the 1930s it began diversification into building materials manufacture. Asbestos was part of that diversification. In 1942 CSR acquired an option from the L.G. Hancock Asbestos Company over asbestos-containing mining tenements at Wittenoom Gorge. ABA was incorporated in 1943. The subscribers were all CSR employees. From 1943-1968 the directors were all CSR employees, save for Hancock (and his partner Wright as an alternate) for a few years. It seems that Hancock attended no, or very few, meetings. The Hancock/Wright shareholding was always of small account. It ceased in about 1949. The CSR employee directors held their qualifying shares on trust for CSR. Shortly after ABA came into existence a managing agency agreement was apparently executed. CSR was appointed managing agent for ABA. The powers given it by the agreement were extremely wide and, on the evidence, exercised, at least in part. However, none of the witnesses called by the defendants, including Sir James \fernon and the former managing director of ABA, a Mr Brown, had ever heard of the agreement -- notwithstanding that for many years a good proportion of ABA's letterheads disclosed CSR as managing agent. Throughout the relevant period of Winenoom's operation, His Honour found that the only persons who exercised power in the running of ABA were officers of CSR -- either employed full-time by CSR, or seconded to ABA and incapable of hire or fire by the ABA management of the day. 1190 The minutes of directors' met: ABA, as His Honour found, gave no indication of what the compa doing or what was happening. On u hand, meetings of the Board of D of CSR evidenced'much discus Wittenoom affairs -- of matter significant and trifling His Honour found that, while A an independent legal existence, it control its own destiny in any rea From 1946-55 it lived on bandouCSR -- either equity or loans. His Honour found that ABA hac to all CSR's facilities -- technical administrative; and that CSR em advised and superintended operai Wittenoom -- including employee seconded at ABA. His Honour said of CSR that it de ABA as if it were an activity of Building Materials Divison (BMI that the BMD dealt with ABA large would have done with interna projects. His Honour held that nec proximity between CSR and the pi. was made out because of a relati between CSR and ABA whereby it have been foreseen by CSR tl decisions and actions apropos Win would bear upon the risk of harm plaintiffs' health. In the light of this approach it b unnecessary for His Honour to dei the "corporate veil" issue distinct: EXEMPLARY DAMAGES: Thes claimed by each plaintiff. By virtue of s.4(2)(a) ofthe Law / (Miscellaneous Provisions) Act the} precluded in the claim pursued f benefit of Mr Heys' estate. Save as statutorily excluded. His E found that the frets did not makt claims for exemplary damages. The not a deliberate attempt to knowledge, or a reckless disregard s safety of the workforce, or any contemulious disregard for the rights plaintiffs; and punitive or dete considerations were not appropriate the conduct complained of was 3D-4( past. POSTSCRIPT As His Honour often commented the trial, his consideration of the i would be but the precursor to an a Each defendant has now appealed; a. plaintiffs have cross-appealed o: exemplary damage fa the mea. in the case of a Wittenoom v employed in 1960 a Supreme Court i Victoria has awarded substantial exen damage against ABA and the Gover: Insurance Office of Western Austral indicated that it will not indemnify'> policy issued to ABA. ABA has saj it will sue the GIO. Some day it v end.D Law Institute Ji