Bale v Seltsam Pty Ltd [1996] QCA 288

IN THE COURT OF APPEAL [1996] QCA 288 SUPREME COURT OF QUEENSLAND Appeal no. 282 of 1995 Brisbane [Bale v. Seltsam Pty Ltd] BETWEEN: JOYCE BARBARA BALE (Plaintiff) Appellant AND: SELTSAM PTY LTD (Defendant) Respondent Fitzgerald P. McPherson J.A. Helman J. Judgment delivered 23/08/96 Separate concurring reasons for judgment of McPherson J.A. and Helman J.; separate dissenting reasons for judgment of Fitzgerald P. APPEAL DISMISSED WITH COSTS. CATCHWORDS: NEGLIGENCE - liability - appellant exposed to low doses of asbestos dust through her husband's employment at asbestos works - whether injury to the appellant as a result of that level of exposure to asbestos dust reasonably foreseeable - state of scientific knowledge on the subject at the relevant time. Counsel: Mr R. Stenson for the appellant Mr S. Doyle S.C. for the respondent Solicitors: Wall Payne & Craswell for the appellant Ebsworth & Ebsworth for the respondent Hearing date: 8 March 1996 -- 1 of 53 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 282 of 1995 Brisbane Before Fitzgerald P. McPherson J.A. Helman J. [Bale v. Seltsam P/L] BETWEEN: JOYCE BARBARA BALE (Plaintiff) Appellant AND: SELTSAM PTY LTD (Defendant) Respondent REASONS FOR JUDGMENT - FITZGERALD P. Judgment delivered 23/08/1996 The appellant has appealed against the dismissal of her action against the respondent for damages for negligence. The issue for determination in this Court is whether the respondent owed the appellant a duty of care. If the Court holds that such a duty existed, judgment should be entered for the appellant in the agreed sum of $94,916.10. It is not in dispute that the appellant’s malignant pleural mesothelioma resulted from the respondent’s acts and omissions, and that the causal relationship between the respondent’s conduct and the appellant’s illness needed to establish an action in negligence existed.1 The respondent 1 See, for example, Jaensch v. Coffey (1984) 155 C.L.R. 549, 583- 586; Bennett v. Minister for Community Welfare (1992) 176 C.L.R. 408; Medlin v. State Government Insurance Commission -- 2 of 53 -- 3 exposed the appellant to inhalation of the asbestos dust which caused her illness by permitting her husband, who worked for the respondent from 1 June 1962 to 30 August 1965, to return home with asbestos dust on his person, on his work-clothes which were laundered by the appellant, and on and in his motor vehicle which was cleaned and used by the appellant, and failed to warn her of the risk associated with such exposure to asbestos dust. It is not disputed by the respondent that inexpensive and convenient systems could have been implemented which would have protected the appellant from exposure to the asbestos dust, and it was not suggested that, if warned appropriately, the appellant would have continued to accept such exposure.2 No challenge was made by the respondent to the trial judge’s finding that, “[i]f called upon to do so”, i.e., had “some harm ... been found likely”, she would have concluded “that the [respondent] was not entitled to take the risk of [the appellant] contracting pleural plaques (or any other physical injury) and that by doing so it would have fallen below a reasonable standard ... in the period under consideration”.3 (1995) 127 A.L.R. 180, 183. 2 Contrast Qantas Airways Ltd v. Cameron (Full Federal Court, NG521 of 1995, unreported, 17 May 1996). 3 “It is clear that the question whether a reasonable person would take steps to avoid a foreseeable risk of injury to another is to be answered by balancing ‘the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities’ which may exist”: Miletic v. Capital Territory Health Commission (1995) 130 A.L.R. 591, 594, citing Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 at 47-48 per Mason J. See also Jaensch at pp. 585-586 per Deane J. -- 3 of 53 -- 4 Indeed, in her careful and detailed judgment, her Honour was extremely critical of the respondent’s conduct and attitude, stating: “It seems an irresistible conclusion that at Board level [the respondent was], to an alarming extent, indifferent to the effect on their workers of exposure to levels of asbestos dust well known for many years to be beyond the widely accepted safe level. To have waited until approximately 1960 to introduce the wet method4 into their factories when it was well known from Dr Merewether's recommendations 25 years previously to be an appropriate way of reducing dust levels and thus the risk of asbestosis, exemplifies this. There was no evidence that any officer of [the respondent] made enquiries of the State Health Department or indeed of any organisation or person knowledgeable in this area in the years preceding and including the relevant period. Neither was there any evidence that any relevant library was maintained in Brisbane or even in Sydney. Mr Johanssen5 said that he knew of the dangers of asbestosis associated with exposure to asbestos dust in the 1950's. His further reading seemed, in a sense, fortuitous. Even today the answers to interrogatories6 reflect negative attitude. It is 4 Earlier, her Honour had said that “... apart from the introduction of the wet process in 1961 very little was done by [the respondent] in the area of worker health and safety.” 5 Carl Warner Johanssen, the manager of the respondent’s factory at which the appellant’s husband was employed. Part of her Honour’s fndings in relation to Mr Johanssen’s evidence was as follows: “He said that no literature relating to the hazards of asbestos were ever directed to him from head office in Sydney. He himself had access to some articles in medical journals including the British Medical Journal and it was likely that he may have referred them to head office. He recalled that a very few articles referred to asbestos related diseases but that he had never heard of mesothelioma in 1962 or the immediately following years. Mr Johanssen said that he certainly picked up articles on asbestosis in the 1950's and was aware of its dangers. ... He gave no evidence about what safety practices were instituted in the [respondent’s] factory ..., for example, monitoring dust levels or, indeed, whether any process of review of the system from the perspective of the health of the workers or the surrounding community was ever undertaken. ...” 6 Dealing with the answers to interrogatories, the trial judge said: “... the [respondent’s] answers to interrogatories were sworn by a director of the [respondent] in Sydney who had no personal -- 4 of 53 -- 5 difficult to accept that nothing could have been learned from documents held by the [respondent] or from approaches to its former senior officers.” knowledge of any of the matters the subject of the interrogatories. He swore that he based his answers on enquiries made by him of present and former officers, servants and agents of the defendant and of a review of such records of the defendant as remained in its possession, custody or power. He was unable to say whether the management of [the respondent] at [the factory where the appellant’s husband worked] in the period 1962-65 had access to any expert or professional journals or periodicals relating to the danger to health of asbestos fibres or whether any regular tests to ascertain the level of airborne asbestos fibres were carried out or as to whether the ... factory was orally advised by Dr Rathus that it should set up its own laundry facilities to launder the outer working clothes of its employees or prevent the employees leaving the factory with dusty outer clothing.” It was also noted by her Honour that, as late as 1968, a proposal for the respondent to introduce “a similar but reduced scheme” “for the elimination of risk to its workers associated with the use of asbestos” based on that which had -- 5 of 53 -- 6 been introduced by the other company with a large asbestos sheet manufacturing operation in Brisbane was modified by the technical director before submission to the managing director “since it had been indicated that the earlier report would not be acceptable”. The document putting forth the “reduced scheme” included the following paragraph: “Proposals for action, both in respect of safety and health in our industries, have been submitted intermittently over many years without any positive result, the Board dis-inclined to sanction the specific expenditure under these headings. It is considered that the Company cannot indefinitely maintain this position without serious repercussions and accordingly it is suggested that a start be made on a more modest basis concentrating on the ‘asbestosis’ problem initially.” After setting out that paragraph, the judgment continued: “The writer noted that there were continuing dust hazards within the factories and it was proposed amongst other things that a full time officer be appointed to investigate safety and health hazards, to carry out dust monitoring in factories, to specify remedial measures and to supervise implementation. In a memorandum by the technical director dated 15 February 1968 headed ‘Safety and Health in the Asbestos Cement Industry’ he noted that at its meeting of that date the Board of Directors of [the respondent] had declined to sanction the introduction of either scheme. The technical director concluded: ‘However in the normal course of your duties you are required to ensure that the safety and health of the employees is given due consideration when planning additions and alterations to our work. Furthermore in any contact with outside organisations it is to be emphasised that the introduction by us 10 years ago of the wet treatment method for fibre very considerably reduced the hazards in our works and that we know of no cases of "asbestosis" originating since that time.’ ” Nonetheless, the trial judge concluded, “with regret”, that -- 6 of 53 -- 7 the respondent did not owe the appellant a duty of care, adding that the decision “had not been ... easy, particularly in light of my conclusion that I could find no real evidence that [the respondent] took any great care for their employees’ health and well-being during the relevant period”. By way of background, it is desirable to record the trial judge’s description of the diseases associated with the inhalation of asbestos dust or fibres, which was in the following terms: “Diseases associated with Asbestos Dangers to health associated with the inhalation of asbestos fibres have been known since the end of the last century ... A number of different diseases are now known to be caused by the inhalation of asbestos dust. The first four are characterised as non-malignant. The remaining two are malignant. They all depend, among other things, on individual susceptibility. Asbestosis. This disease is caused by prolonged and/or heavy exposure to asbestos dust apparently of any type although crocidolite (blue asbestos) is the most hazardous. It is a scarring or fibrosis of the internal lung tissues. The lungs thicken and stiffen over time causing shortness of breath. Its consequences can be mild or so severe as to be completely disabling leading to death. Its onset is dose related either as to intensity or length of exposure. In 1934 W Wood and S Gloyne found that the shortest exposure to asbestos dust in a factory which eventually led to asbestosis was 6 months. The more usual period was found to be in the vicinity of five years emerging some 15 to 20 years after exposure. In more recent times exposure of some two to three months at the Wittenoon mine in Western Australia has been sufficient to contract the disease. Pleural Plaques. These are rounded raised gristly patches on the inside chest wall generally associated with exposure to asbestos dust which may be much less than necessary to cause asbestosis. These are shown on x-ray but are generally without symptoms. Pleural plaques may be a forerunner to the development of asbestosis -- 7 of 53 -- 8 but on their own they are commonly regarded as an indicator of work with asbestos in the past. Pleural Effusion. This is the outward manifestation of an inflammation of the pleura. Fluid accumulates in the chest cavity outside the lungs and embarrasses breathing. It is usually acute and settles after a relatively short period. Diffuse Pleural Fibrosis. This may occur in the absence of exposure to asbestos but commonly it is associated with it. It is probably preceded by pleural effusion and pleuritis. Lung Cancer. It is a tumour which occurs in the air sacs and the bronchial lining. The correlation between lung cancer and asbestosis was suspected for many years and confirmed in 1955. It seems to be generally accepted that its risk is greatly increased in people with asbestosis who are smokers. Malignant Pleural Mesothelioma. This is a tumour of the membrane lining surfaces of the lungs, internal chest walls and upper diaphragm. Malignant mesothelioma can occur in the peritoneum (the membrane lining the gut and internal abdominal walls). The microscopic structure of a mesothelioma tumour is distinct from that of a lung cancer as is its mode of spread. It requires a smaller exposure to asbestos containing amphibole (crocidolite, amosite or tremolite) than the other known asbestos related diseases and has a long induction period from 15 up to 50 years. Smoking is not believed to increase its risk. Until the use of electron microscopy and immuno chemical stains in the 1980's it was very difficult to diagnose. Some writers doubted its existence as a primary tumour even into the 1960's. Once it becomes symptomatic it is fast acting, incurable, fatal within a short period and extremely painful. It continues to be a rare condition.” Later, her Honour said: “There is little doubt that the community at large had by 1962 been made aware of the generally harmful effects of the inhalation of significant amounts of asbestos dust for those who worked in the industry.” Her Honour’s statement of the issues which still remain in dispute and her overview of the parties’ respective submissions were in the following terms: “The Issues The major issues requiring determination are: -- 8 of 53 -- 9 Could the [respondent] foresee or ought it reasonably have foreseen that a person in the position of [the appellant] would be likely to suffer personal injury as a consequence of its operations at its ... factory? If some personal injury to [the appellant] was reasonably foreseeable was malignant mesothelioma of a class or kind of injury which was reasonably foreseeable? ... Overview of Submissions The [appellant] sought to demonstrate from the evidence of a number of expert witnesses that in the period 1962 to 1965 there was a body of scientific evidence available to the [respondent] had it turned its mind to the issue, which would have alerted it to the dangers from asbestos dust to people in the position of [the appellant]. This, in effect, was a submission that low levels of exposure to asbestos dust could be foreseen as productive of personal injury. The [respondent] submitted that, while the dangers of inhalation of asbestos dust were well known for workers exposed to heavy levels of dust, the link between malignant mesothelioma and asbestos inhalation was first established by the work of a South African pathologist, JC Wagner, published in 1960. The [respondent] submitted that even though those results related to non-workers nonetheless they had been exposed to heavy levels of asbestos dust. The [respondent] maintains that it was not until 1965, with the publication of a paper by ML Newhouse & H Thompson, that the risk of contracting malignant mesothelioma to a person exposed to low levels of asbestos dust first became recognised.” It will be necessary to consider later the terms in which the issues were identified. However, a complication illustrated by the nature of the submissions should be noted at this point. Briefly stated, the appellant relied for her case on information available in the period 1962 to 1965, while the respondent asserted a lack of knowledge until 1965, or -- 9 of 53 -- 10 effectively at or after the end of the appellant’s husband’s period of employment with the respondent. However, as the trial judge later stated, “the period of [the appellant’s husband’s] employment at [the respondent’s factory] coincided with important medical research linking asbestos exposure to mesothelioma ...”, i.e., relevant information became available during the material period. As noted earlier, causation was not in issue, at least to any substantial extent, and detailed findings with respect to causation were not made. The trial judge said: “The evidence demonstrates that exposure to very small amounts of asbestos dust may be sufficient to cause malignant mesothelioma in a person susceptible to that condition. The [respondent] did not seek to argue that it was necessary for [the appellant] to be exposed over the whole period from 1962 to 1965. The case proceeded on the basis that any exposure during that period may have been sufficient.” It is perhaps implicit in the last sentence of that passage that the appellant’s illness would not have been prevented by a warning from the respondent, or its insistence that workers be free of asbestos dust prior to leaving the workplace, if that warning had been given or requirement imposed after 1 June 1962, when the appellant’s husband commenced to work for the respondent. However, that seems to me too narrow an approach, and too pedantic a reading of the final sentence in the passage last quoted from the trial judge’s judgment, which seems primarily directed to a concession which her Honour considered that the respondent -- 10 of 53 -- 11 had made. I propose to proceed on the basis that, on the balance of probabilities, the appellant’s illness would have been avoided if the respondent had enforced the necessary requirement and/or issued the necessary warning by the end of 1962. Her Honour discussed at some length the “Knowledge of asbestos related diseases” by reference to both the “literature” and the evidence of expert witnesses, who “provided written reports or statements, produced relevant literature and gave oral evidence directed generally to the state of knowledge from 1962 to 1965 of the danger of contracting malignant pleural mesothelioma from exposure to small amounts of asbestos dust.” It is necessary to note what was said on these matters in her judgment, together with brief additional passages from an important paper published in 1960. Because of the voluminous material, it is proposed to record salient points in the trial judge’s discussion of the “literature” in note form. Unless otherwise indicated, passages in quotation marks are taken from the trial judge’s judgment. · Reference was made by her Honour to the publication in 1930 of “[t]he important work of Merewether and Price: ‘Report on the Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry’ ” and preventive measures recommended by Merewether in 1934 -- 11 of 53 -- 12 to reduce the risk of asbestosis in the asbestos industry. · “Papers were published in the 1930's which tended to show that even relatively short exposure to heavy doses of asbestos dust by workers could eventually cause asbestosis (Wood & Gloyne).” · “Papers seeking to make a link between lung cancer and asbestosis were published from about the mid- 1930's, throughout the 1940's with the link finally confirmed in a seminal paper by R Doll in 1955.” · “In 1938 Dreessen and others published a major report on asbestosis in the textile industry in the United States. For the first time an attempt was made to calculate a safe level of asbestos dust particles in the atmosphere. The authors concluded that an atmospheric concentration of less than five million particles per cubic foot would be unlikely to cause the onset of asbestosis. This figure in due course found its way into various workplace regulations around the world.” · “The International Labour Organisation’s Third International Conference of Pneumoconiosis Experts was held in Sydney in 1950 and attracted significant media coverage. Its focus was mainly upon silicosis and coal miners’ pneumoconiosis but it also dealt with asbestosis. The participants included industry representatives as well as scientists.” · “A major survey involving some 4,000 workers in dusty trades conducted by the industrial hygiene division of the Victorian Health Department in 1956 (the results of which were reported in the Melbourne Age in some detail) was reported to have shown a disturbingly high incidence of asbestosis among workers regularly handling asbestos.” · “At least by the 1950's there is evidence that some workers at [the respondent’s] factory (and others in Queensland) were experiencing asbestosis after quite prolonged employment in the industry and x-rays were monitoring their progress.” · “A Pneumoconiosis Conference was held in Johannesburg in South Africa in February 1959. Its papers were published in 1960 including those by pathologists Wagner and Sleggs which described an association between exposure to asbestos and malignant mesothelioma. They published a joint -- 12 of 53 -- 13 paper with Marchand in the British Journal of Industrial Medicine in August 1960 entitled ‘Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province’. That article has been variously described as ‘seminal’ or ‘famous’ by the expert witnesses in this case. The precis of the article which appears at its commencement is as follows: ‘Primary malignant tumours of the pleura are uncommon. Thirty-three (23 males, 11 females ages 31-68) of diffuse pleural mesothelioma are described: all but one have a probable exposure to crocidolite asbestos (Cape blue). In a majority this exposure was in the Asbestos Hills which lie to the west of Kimberley in the north west of Cape Province. The tumour is rarely seen elsewhere in South Africa.’ The article indicated that in the 1950's a number of cases of malignant pleural mesothelioma suggested that asbestos might be implicated. Of those, one patient had asbestos in his lungs and 10 came from a hospital to which suspected cases of tuberculosis were referred from a large asbestos mining area. The authors wrote: ‘This hypothesis could not be supported at once from the original histories obtained by the patients, for they included housewives, domestic servants, cattle herders, farmers, a water bailiff, an insurance agent, and an accountant, none of whom were working on the asbestos mines at the time.’ The authors undertook a detailed investigation of the patients' past occupation and place of residence. An association with asbestos exposure was discovered in all but one case. They wrote:- ‘This is a preliminary publication and the problem is being intensively investigated.’ Eight case histories of the 33 originally investigated were summarised in the paper, illustrating various aspects of the disease and the different levels of exposure to asbestos dust. Several of the histories related to women who were not miners but who lived in or near mining towns. Of some interest was Case 15, a woman whose father had a long mining history. She went to school in the Copper Belt where she spent most of her youth. Case 16 was that of a farmer who went to a village school near an asbestos mine. He transported asbestos in donkey wagons for two years when a boy and often slept on the bags. He -- 13 of 53 -- 14 worked for only one month in an asbestos mine. Case 24 was of an accountant who had spent his early childhood in the asbestos belt. His only other contact with asbestos was auditing the books of an amosite mine in the Transvaal. Of the 33 cases investigated eight showed the presence of asbestosis. Of the remaining 25 cases 18 were born in the vicinity of the mines and two arrived in the district as infants. Of those 18 people 11 had a definite childhood exposure to the dust and two were exposed industrially in later life. Two patients with childhood exposure later worked in the asbestos mines. Three cases had arrived in the region at an older age but were employed either on the mines or in transporting asbestos. A further three of those 25 had industrial exposure and in only one case did the relations deny any exposure at all to asbestos dust. The authors indicated by way of an addendum that by the end of June 1960 a total of 47 cases of mesothelioma had been identified. In 45 of those cases a possible association with exposure to crocidolite had been established. The paper was important not just for the connection which it made between malignant mesothelioma and exposure to asbestos dust but because it also tended to confirm the existence of primary malignant tumours of the pleura. For many years there was a vigorous school of thought which suggested such tumours to be secondary in origin. There was some attempt in the paper to identify which kinds of asbestos fibres were associated with the malignant tumours. That was much less conclusive but tended to suggest that it was confined to blue asbestos or Cape blue (crocidolite). There was considerable questioning of the experts at trial as whether these findings could be regarded as ‘preliminary’. The authors certainly said so. They were scientists and while there remained much work yet to be done they raised interesting issues for consideration. Even though most of the cases had little occupational exposure to asbestos dust the levels of dust were as high as in some occupations.” The sentence last quoted seems to me questionable. In any event, it is plain even from the trial judge’s summary of the 1960 article by Wagner, Sleggs and Marchand that it was known that merely living in an area in which asbestos mining was conducted could lead to malignant pleural mesothelioma. -- 14 of 53 -- 15 Two case studies referred to by Wagner, Sleggs and Marchand, Nos. 4 and 15, are interesting, as is a further passage in their article which was not set out or fully discussed in her Honour’s judgment. Case study number 4 concerned “K.M., a white female, 56 years of age (born 1898), was a social worker, who could only have had a short exposure to asbestos as a child and probably a further slight exposure as a young woman. She may have paid several short visits to the mines with her husband at a later period. She was born in Griquatown where she lived until she was 5 years of age. Her family then moved to Kimberley where from 1916 to 1922 she worked as a clerk in an asbestos warehouse. Her husband owned an asbestos mine from 1933-1940.” Case study number 15 involved “a white female, 42 years of age (born 1916) is a housewife who lived on a mine near Johannesburg and was treated for tuberculous pleurisy for six months. It was only after the histological diagnosis of a mesothelioma had been made that her previous history was obtained. In addition, it was subsequently learnt that her father (Case 22) had been born on the asbestos field and had a long mining history. The patient was born in the Griquatown district and went to school at Kuruman. She spent most of her youth in the -- 15 of 53 -- 16 asbestos belt. She has lived near Johannesburg for 20 years.” Further, the authors stated: “The pathological evidence for associating these tumours with asbestos exposure is not conclusive. As previously stated, only in eight of the 33 cases has evidence of asbestos been demonstrated. Of these, six had a definite mining history and one had been exposed to asbestos while lagging steam pipes. The other case was born in the Kuruman district and nothing else is known of him, until his arrival at a Witwatersrand gold-mine at the age of 23. In the remaining 25 cases we can only present circumstantial evidence of exposure to asbestos dust ... ... ... Our findings suggests that mesothelioma occurs 20 to 40 years or more after exposure to dust.” The trial judge went on to discuss later papers and articles, including a number published prior to the end of 1962. · “A discussion held at a clinicopathological hospital conference in London was printed in the British Medical Journal for 30 April 1960. It is entitled ‘Complications of Asbestosis’. The participants discussed a patient who had worked in an asbestos factory for 11 years and was diagnosed as having asbestosis and rheumatoid heart disease. He also had a carcinoma of the right lower bronchus and metastases in various locations. Dr Hugh-Jones, a thoracic specialist, in considering the carcinoma observed that most reports had stressed the frequency of sqamous carcinoma with asbestos. He said that there was no question of the present carcinoma being a mesothelioma. He described asbestos at p. 1350 as ‘very toxic and produces not only pulmonary fibrosis but reactions in the pleura and even in other organs’. He noted that another hazard of exposure to asbestos was mesothelioma of the pleura. He added ‘this rather rare tumour may draw attention to the fact that a patient has worked in asbestos dust’. Dr Hugh- Jones concluded: ‘Asbestosis was first described in this country by M Murray in 1907. After that, in 1930, Merewether and Price reported the dangers of asbestos dust in the lungs -- 16 of 53 -- 17 and made recommendations for dust suppression. Thereafter there was a great improvement. In the factory where our patient worked the utmost precautions are now taken to prevent asbestosis occurring. It is a disappearing disease. Nevertheless, asbestos dust is most toxic, and the amount needed to cause asbestosis is not known, so constant vigilance and new preventive methods are needed if this disease is to be abolished’. I mention this reprint of the discussion not because it added to knowledge about malignant mesothelioma and asbestos exposure but because it sounded a warning about the unknown aspects of the toxic effects of asbestos.” [Underlining added] · “An article appeared in The Lancet of 3 December 1960 entitled ‘Asbestosis and Abdominal Neoplasms’ by Dr Keal. In his summary he noted the high incidence of cancers in people with asbestosis. He particularly drew attention to the occurrence of cancers in two patients whose sputum contained asbestos bodies many years after removal from exposure but who had no other evidence of asbestosis. In the body of his article he mentioned that primary mesothelial tumours were rare and added, ‘This type of tumour is more common in patients with asbestosis’.” · “By 1960 I conclude that, for those with some little interest in the subject, asbestosis was known to be a possible consequence of prolonged and heavy exposure to asbestos dust in the work place. It was also known to those who investigated further that those who had contracted asbestosis could also develop lung cancer. Since pleural plaques were virtually symptomless only those involved in the field of thoracic medicine were likely to be aware of the condition. Although malignant mesothelioma of various organs was known amongst a handful of specialists its identity as a primary tumour was not widely known or accepted and it was a rare condition difficult to diagnose. ...” · “A short article in the 8 September 1962 edition of the South African Medical Journal by Thompson appeared under the title ‘Mesothelioma of Pleura or Peritoneum and Limited Basal Asbestosis’. That was an abstract of a paper presented at the Research Forum of the University of Capetown on 14 June 1962. Thompson noted that it was accepted by a majority of pathologists that mesothelioma was -- 17 of 53 -- 18 an entity in itself and that diffuse or malignant mesothelioma had been shown to be associated with pulmonary asbestosis in Canada, Holland, South Africa and Germany. In his own practice he wrote that he encountered 7 examples of mesothelioma and none had asbestosis clinically or radiologically and only one had a history of occupational exposure to asbestos. He concluded that it was likely that the enormous increase in the world consumption of asbestos and its use in a wide variety of industrial products made it possible for an increasing number of people manufacturing, handling or using those products to inhale enough asbestos fibres to produce what he described as ‘this limited basal asbestosis’ without having any clinical or radiological evidence of it. He added that in the modern home asbestos may be present from the roof to the pipes in the basement, but suggested that the home hazard from asbestos might be theoretical rather than practical to the occupant but not to the builder. This was a particularly prescient comment, but not more widely circulated for some years. A letter appeared in the British Medical Journal of 3 November 1962 from WJ Smither Chairman of the Asbestos Research Council and two members of the Medical Research Council's Pneumoconiosis Research Unit. They referred to and cited the Wagner articles in the South African Medical Journal and the British Journal of Industrial Medicine and wrote: ‘There appears to be no correlation between the severity of any pulmonary asbestosis and the occurrence of these tumours. In a number of cases the exposure to asbestos dust appears to have been minimal, and the only histological evidence of asbestos exposure is the presence of a few asbestos bodies and fibres in the lung tissues. However, a detailed occupational history has, in nearly all cases, revealed some contact with asbestos fibre.’ The writers asked for information concerning any patient in whom a mesothelioma tumour had been diagnosed and asked for the information to be sent to the Director of the Medical Research Council's Pneumoconiosis Research Unit where a register was being compiled. In the 24 November 1962 issue of the British Medical Journal, McCaughey, of the Department of Pathology at Queen's University Belfast together with Wade and Elmes of the Department of -- 18 of 53 -- 19 Therapeutics and Pharmacology wrote under the title ‘Exposure to Asbestos Dust and Diffuse Pleural Mesotheliomas’. They reported a number of cases of diffuse pleural mesothelioma researched by them. They had analysed histologically 15 cases looking for asbestos bodies. They found them in 12 and in only one case was the asbestos plentiful. In the remainder they were few and a prolonged search was needed for their detection. The occupational histories showed that in four cases there was an intermittent exposure to asbestos usually through occupation in shipyards or engine rooms. The authors concluded: ‘In most of these cases exposure to asbestos was not continuous or prolonged and in some instances there was a considerable gap between the last exposure and the onset of symptoms due to the tumour.’ An article appeared in The Medical Journal of Australia for 15 December 1962 under the heading ‘Malignant Pleural Mesothelioma in an Asbestos Worker’ by Dr JC McNulty, a chest physician at the Kalgoorlie District Hospital. He referred to and cited the Wagner article in the British Journal of Industrial Medicine in 1960 and noted the authors' comment that there was circumstantial evidence of ‘at least transitory asbestos exposure’ in 24 cases of malignant pleural mesothelioma occurring 20 to 40 years after the exposure to the dust. Blue asbestos had been mined in Western Australia since about 1946 and a number of miners had developed asbestosis, silicosis and a mixed pneumoconiosis containing elements of both. Dr McNulty reported what he believed to be the first case of mesothelioma outside South Africa. The man had been a mill worker in an asbestos mine from 1948 to 1950. ‘The relatively short period of exposure to blue asbestos dust confirms an impression received from Wagner et alii (1960, 1961) that these tumours may arise after transitory exposure to crocidolite in susceptible persons.’ Dr McNulty referred only to blue asbestos emphasising that it was a very harmful and lethal fibre and that its dust urgently required further experimental study.” There is no evidentiary basis for a conclusion that it would have benefitted the appellant if the respondent had warned her, or introduced necessary requirements of its workers, -- 19 of 53 -- 20 including the appellant’s husband, after the end of 1962, and I see no purpose in discussing later papers or articles, or the trial judge’s analysis of them. Her Honour’s “Overview of Submissions”, referred to above, support her later statement that the respondent conceded that “the link between exposure to low levels of asbestos dust had been made and impliedly that it ought to have thereafter taken preventative measures” after publication of a paper by Newhouse and Thompson entitled “Mesothelioma of Pleura and Peritoneum Following Exposure to Asbestos in the London Area” which was delivered in New York in October 1964 and published in the British Journal of Industrial Medicine in about mid-1965. It is implicit in this approach that there was no duty to take preventative measures (or issue warnings to persons such as the appellant) until “the link between exposure to low levels of asbestos dust and malignant mesothelioma had been made”. Under the heading “The Witnesses”, the trial judge identified the various experts who gave evidence as follows: “The [appellant] called five expert witnesses. Dr WA Oliver is a thoracic physician. He graduated in medicine in Sydney in 1962 and worked in Queen Mary's Hospital in London from 1965 to 1966 where he saw a number of cases of malignant pleural mesothelioma either in workers or in families of workers associated with particular asbestos plant. Dr E Rathus, now retired, was a specialist in chest diseases who was Director of Industrial Medicine in Queensland from 1957 to 1982. Dr K Basden is a retired senior lecturer at the School of Chemical Engineering and Industrial Chemistry at the University of New South Wales with a particular interest in dust suppression and dust diseases. Mr Gordon Stewart is a retired industrial hygienist who worked in that capacity -- 20 of 53 -- 21 with Mt Isa Mines Limited from 1965. Mr Peter Russell, now retired, was formerly a safety officer with James Hardie Pty Ltd, another producer of asbestos-cement products from 1948 to the 1970's. The [respondent] called Dr David Ferguson, emeritus Professor of the University of Sydney and a specialist in occupational health.” Her Honour first discussed the evidence of Dr Rathus who, as Director of Industrial Medicine in Queensland throughout the material period, visited the respondent’s premises “probably twice a year in his early years as director and subsequently no less than once a year”. Following at least some of his visits, letters were sent to the respondent by the Director-General of Health, including one letter, to which her Honour referred, which was sent in late 1960 or early 1961, prior to the commencement of the period when the appellant’s husband was employed by the respondent. Her Honour attached little significance to the “positive tone” of the correspondence, which Dr Rathus considered necessary to encourage improvement, despite the cost to the respondent, in circumstances in which there was no applicable legislation7 or other coercive power. For example, the letter in late 1960 or early 1961 stated: “Dr EM Rathus, Director of Industrial Medicine, has reported that your firm has made great progress in the designing of equipment calculated to depress dust contamination of the atmosphere to an absolute minimum. He states that some cases of asbestosis have been 7 The Factories & Shops Act 1900 contained a general provision requiring adequate ventilation. -- 21 of 53 -- 22 discovered at your firm but they probably occurred when the less modern methods of work prevailed. Surveys in the future will no doubt reveal the effectiveness of the present system." Later, her Honour referred to a letter dated 11 October 1966 from Dr Rathus to Mr Johanssen in which (according to the trial judge’s summary of the letter’s contents) Dr Rathus referred to asbestos dust’s “unenviable reputation”, stated that it appeared that “no matter what was done cases of asbestosis would still arise where the fibre was capable of invading the lungs”, and “noted that because asbestosis had a long incubation period it would not be possible to see how effective ... a program [recommended by Dr Rathus] might be under 10 to 15 years”. According to her Honour: “This was the first letter expressing concern at the generally hazardous nature of asbestos and making wide ranging suggestions to eliminate the danger.” However, that statement seems to me to underestimate the importance of the indication in the letter of late 1960/early 1961 that there was uncertainty concerning the efficacy of work practices which were then current; “[s]urveys in the future will no doubt reveal the effectiveness of the present system”. Other matters are more favourable to the respondent. For example, as her Honour stated: “Dr Rathus was a member of the National Health and Medical Research Council and a member of its Occupational Health Committee from 1957. That committee reviewed recommended maximum concentrations of atmospheric contaminants associated with occupational exposure from time to time and in particular in 1961, 1963 and 1964.” -- 22 of 53 -- 23 As late as 1964, that Committee seemed to accept, or at least assume, that Dreessen’s safe occupational limit of five million particles per cubic foot was still applicable. Further, as late as September 1966, Dr Rathus wrote to the medical officer for Brisbane’s other large asbestos sheeting manufacturer expressing the opinion that “...the asbestos firms in Queensland, and in Australia in general, to date have enviable reputations compared with what one knows of the overseas situation.” Her Honour also found that: “During this period from time to time Dr Rathus would bring visiting health experts and medical students to visit the [respondent’s] factory in Brisbane to show them how an efficient modern factory could handle such a dangerous substance with safety.” A statement by Dr Rathus, which became Exhibit 1, contained the following paragraphs: “4. As early as 1957, I had initiated surveys by X-ray of Wunderlich Ltd and James Hardie Industries’ employees because I was concerned about the exposure of those employees to asbestos fibre. 5. I can recall having frequent contact with Karl Warner Johannsen of Wunderlich in relation to the dust conditions at Wunderlich’s factory, the wearing of adequate protective equipment by the employees, and, various other health matters concerning exposure to asbestos, including the use of enclosed systems in the production and handling of asbestos products, where such systems could be used. 6. I can recall recommending in the late 1950's that, where possible, enclosed systems be used in the production and handling of asbestos products and that employees wear protective masks where I felt that there existed a risk to health from exposure to asbestos dust. Generally speaking, recommendations made by me took years to implement -- 23 of 53 -- 24 because of the difficulties in having large companies such as Wunderlich Ltd react to my concerns. 7. In the late 1950's/early 1960's, I knew of cases where health conditions were caused by limited exposure to asbestos, even by non-workers. 8. In my opinion, in 1962, Wunderlich Ltd knew enough of these dangers to have required its workmen not to wear clothes home because they knew that some of their workmen left the factory covered in dust. I recall seeing some of the workers at Wunderlich’s factory covered in dust. Wunderlich knew that asbestos was a dangerous product, but generally, they were slow to implement ideas to reduce exposure. I have a recollection of Johannsen telling me that there were problems getting things done because of the difficulties obtaining approval from the people who held the purse strings down south. 9. In the early 1960's, I cannot specifically recall the date, I told Karl Johannsen that his employees should not wear their clothes home because of the risk to their family associated with the dust on the clothing. I told lead workers precisely the same thing.” However, the trial judge noted that “[n]ot surprisingly, given the passage of time, Dr Rathus was unable to be at all precise as to dates unless documents covering certain events were available”, and stated: “In his statement prepared for this litigation dated 18 September 1995 Dr Rathus said that in the late 1950's/early 1960's he knew of cases where adverse health conditions were caused by limited exposure to asbestos even by non workers. That was not developed by him in his oral evidence. He said that in his opinion in 1962 Wunderlich knew enough of ‘these dangers’ to have required its workmen not to wear clothes home because they knew that some their workmen left the factory covered in dust. Mr Johanssen does not recall that particular conversation and in oral evidence Dr Rathus agreed that it was impossible to pin him down to dates, even years. For him the problem was a continuing one. In a letter dated 2 June 1967 Dr Rathus wrote to Mr Johanssen as follows: ‘As you are aware there has been general concern in the asbestos industry about the problems of asbestosis. Its impact -- 24 of 53 -- 25 on the working population has become quite clear over the decades and with a very much larger use of asbestos in various ways the ramifications of the problem have become if anything more complicated. I refer of course to the strong suspicion that mesotheliomata (pleural tumours) are strongly suspected of being connected with asbestos exposure. This refers not only to the working population but also to the general community. It is my privilege to emphasise these matters and I think that it is only reasonable to bring these matters to your attention.’ ... ... There is no reference in any of the contemporary documents that employees should not wear their working clothes home and that they be laundered by the employer.8 Dr Rathus made mention of difficulties in getting workers to use face masks and there is no doubt that there would have been difficulty in implementing showering practices. Mr Bale said that everyone was keen to leave the factory premises as quickly as possible at the end of the shift. Nonetheless, if the risk were appreciated the employer could have found an appropriate way to enforce the hygiene.” I propose to supplement what the trial judge said in relation to Dr Rathus’ evidence only briefly. Although he said that he could not give precise dates for suggestions and recommendations which he made to the respondent, he stated that he would have warned the respondent of danger to workers’ families from asbestos dust as early as 1958. He also said that Wagner, Sleggs and Marchand’s article was the 8 The trial judge said that Mr Johanssen “could not recall Dr Rathus suggesting that overalls or a change of clothing be provided for the men during the period in question. He said that there were showers which were provided at the factory because it was a requirement of the Factories and Shops Act. No direction in the period 1962 to 1965 was ever given that men who were dusty should shower before leaving the premises.” -- 25 of 53 -- 26 first to suggest a nexus between asbestos and mesothelioma, and agreed that both that article and McNulty’s article indicated a need for further investigation. Dr Oliver’s evidence was that, while the connection between asbestos and asbestosis was known late last century, mesothelioma was not associated with asbestos until the publication of Wagner, Slegg and Marchand’s paper; however, he said that the association between asbestos and that illness was well-known in the United Kingdom in the early to mid-1960s, and a hospital which he worked at after that period had patients with mesothelioma who “had only domestic exposure or lived downwind from [an asbestos] factory.” Dr Oliver’s view is amply borne out by the article by Newhouse and Thompson,9 which, as earlier stated was delivered in 9 That paper included the following passages: “A series of 83 patients from the London Hospital with a diagnosis of mesothelioma confirmed by necropsy or biopsy has been studied for possible exposure to asbestos. The series consisted of 41 men and 42 women; 27 of the patients had peritoneal and 56 pleural tumours. The earliest death recorded was in 1917, but only 10 of the series died before 1950 and 40 (48%) between 1960 and 1064. In 76 of the series full occupational and residential histories were obtained. Forty (52.6%) gave a history of occupational or domestic (living in the same house as an asbestos worker) exposure to asbestos compared with nine (11.8%) out of 76 patients from the same hospital suffering from other diseases (P < 0.001). None of the 17 suspected cases of mesothelioma, rejected on pathological grounds, was found to have had any exposure to asbestos. There was also evidence that neighbourhood exposures may be important. Among those with no evidence of occupational or domestic exposures, 30.6% of the mesothelioma patients and 7.6% of the in-patients with other diseases lived within half a mile of an asbestos factory (P < 0.01). Out of the 31 patients with occupational exposures only 10 were in jobs scheduled under the Asbestos Regulations of 1931. The interval between first exposure and the development of the terminal illness of mesothelioma ranged between 16 and 55 -- 26 of 53 -- 27 1964 and published in 1965. The trial judge apparently accepted evidence from Dr Oliver which she summarised in the following passage: “Dr Oliver concluded in his report tendered in the trial that if Dr McNulty knew of the Wagner paper when he worked in Kalgoorlie in 1962 it would be surprising if the defendant did not know of this and the cautionary letters in the British Medical Journal and the investigations proceeding in London. He commented that if he had been working in this field in 1962 he would have been concerned about the two letters in the British Medical Journal about low dose asbestos exposure and mesothelioma. Dr Oliver particularly pointed to years. ... The aim of this study has been to establish the occupational histories of these patients and to trace any other possible exposure to asbestos. ... ... Domestic Exposures - The group of nine, seven women and two men, whose relatives worked with asbestos, are of particular interest. The most usual history was that of the wife who washed her husband’s dungarees or work clothes. In one instance a relative said that the husband, a docker, came home ‘white with asbestos’ every evening for three or four years and his wife brushed him down. The two men in this group, when boys of 8 or 9 years old, had sister who were working at an asbestos factory. One of these girls worked as a spinner from 1925 to 1936. In 1946 she died of asbestosis. The press report of the inquest states: ‘She used to return home from work with dust on her clothes’. Her brother had apparently no other exposure to asbestos; he started work as a shop assistant, then became a sawyer of iron girders until 1948 when he worked as loader of groceries in the docks for five years (but never on dusty cargoes) and then returned to sawing iron girders. He died in 1956 of a pleural mesothelioma. ... Neighbourhood Exposures of Mesothelioma and In-patient Series - The 36 patients with mesothelioma and the 67 patients in the ‘in-patient’ series, who had neither an occupational exposure nor a relative living in the home working with asbestos, might have been exposed to asbestos dust because they lived in the immediate vicinity of an asbestos factory. ... There seems little doubt that the risk of mesothelioma may arise from both occupational and domestic exposures to asbestos. Wagner and others (1960) described patients with no exposure other than living as a child in the vicinity of the asbestos mines. A high incidence of asbestos plaques of the pleura has been found in the population living near an anthophyllite mine in Finland (Kiviluoto, 1960). More evidence is required of an increased risk to the population living in the neighbourhood of asbestos factories or other areas, such as dockyards, where asbestos is used in quantity.” -- 27 of 53 -- 28 the letter of 3 November 1962 in the British Medical Journal from the chairman of the Asbestos Research Council who was an industry person. He concluded that industry itself was getting suspicious and that "red flags", as he expressed it, were going up.” The trial judge also seems to have accepted evidence from Mr Stewart, who was first employed in the field of industrial hygiene in 1954 and worked as a scientific officer in the industrial hygiene department of the Victorian Department of Health from then until 1965 that: “In the early 1960's he was aware of general medical publications such as the British Medical Journal, the Lancet, the Journal of the American Medical Association and the Australian Medical Journal and of particular industrial medical publications such as the British Journal of Industrial Medicine, the Journal of Occupational Medicine and the Archives of Environmental Health. As an industrial hygienist at the time he was aware of the serious effects upon health of the inhalation of asbestos and that that had been known for decades. He was also aware of theories of the correlation between the inhalation of asbestos and various cancers.” However, her Honour observed that Mr Stewart did not say “... that in his work as a scientific officer ... that he became aware through the general medical publications to which he said he had access of the risk to members of the public from exposure to low levels of asbestos dust.” Further, some other aspects of Mr Stewart’s evidence should be noted. Thus, he said that, when he joined the Victorian Department of Health “... there were already a very active programme of investigating dust exposure in a range of industries and the - actually brick and tile industries, -- 28 of 53 -- 29 asbestos, lagging, and asbestos processes generally, mining, certainly, and ... that was well-known in the industrial hygiene community,” and, “in 1956, the Victorian Government declared asbestos trades as dangerous under the Dangerous Trades Regulation; this included any factory process involving asbestos.” He also stated that “... the effect that exposure to asbestos could lead to serious respiratory complaints was well-known and accepted in the field of industrial hygiene and medicine since at least 1954 when I joined the Victorian Department of Health.” When asked what were the serious complaints that were well-known and accepted he said: “... in the first place asbestosis which is fibrosis - progressive fibrosis of the lung caused by the inhalation of asbestos fibre. In the second case it was known that in a percentage of cases the - this exposure could lead to various cancers of the throat and lung and associated areas. There was ongoing progressive illness that occurred, such as heart failure due to insufficiency of oxygen and consequences of the fibrosis as well as those consequences as a result of cancers which are usually very serious, of course.” In his opinion, “[b]y the early 1960's, I would expect that a reasonably competent industrial hygienist employed by a company such as the [respondent] in these proceedings to have access to general medical publications (such as The British Medical Journal, The Lancet, The Journal of the American Medical Association and The Australian Medical -- 29 of 53 -- 30 Journal) and to industrial medical publications (such as The British Journal of Industrial Medicine, The Journal of Occupational Medicine and The Archives of Environmental Health).” So far as now material, the trial judge’s observations in relation to the evidence of Mr Peter Russell, who was a safety and fire officer at another large asbestos plant owned by a company during the relevant period were as follows: “... Towards the end of 1960 he took up the position of safety and fire officer ... . His main task was to concentrate on the asbestos dust problem which existed within those factories. ... he said that when he was appointed to this position he read what was available to him ... and became concerned about the seriousness of the asbestos dust problem in the factory. To broaden his knowledge he researched various public libraries and public health department libraries to learn as much as he could about the dangers of asbestos dust. He said that he became aware through his reading in the late 1950's and the early 1960's of a possible link between asbestosis and cancer and between exposure to asbestos dust and mesothelioma. He became aware of two cases of health problems by a wife and child said to be as a result of exposure to asbestos dust carried home on work clothes. He did not elaborate in oral evidence. He became aware that different individuals had different susceptibilities to asbestos dust and that even fairly minimal exposure to asbestos dust could be dangerous to health. He recalled having access to the Wagner article shortly after it was published. He said he was given the article ... reporting a discussion on the complications of asbestosis in the 30 April 1960 volume of the British Medical Journal, to which I have earlier referred, ... . Mr Russell recalled ... a series of reports of a conference held in France in 1964 at which the report of Dr Wagner was discussed and recalled that he delivered a lecture based on his 1960 paper in Sydney in either 1962 or 1963. ... ... There is a risk that he may have merged his -- 30 of 53 -- 31 recollection as to what happened in the early 1960's with what he has learnt subsequently but I am persuaded that Mr Russell was aware of the Wagner article shortly after it was published, that he had passed to him other articles to which I have referred at that time and that he endeavoured to qualify himself to fulfil the role of safety officer in a diligent fashion. However Mr Russell did not say that at any time he drew the conclusion that exposure to very low levels of asbestos dust were likely to constitute a risk either to workers or to those outside the factory. There is no suggestion that he sought to give that advice ... or indeed that he discussed things of that kind with other colleagues. That suggests to me that whilst he may have had access to the Wagner article in the early 1960's and other articles he did not draw the conclusions which it is argued that the [respondent] ought to have drawn had it perused those articles or sought advice.” Little or no relevance was placed by the trial judge on the evidence of Dr Basden,10 who did not take a particular interest in “industrial dusts” until “about the beginning of the 1970's”. Her Honour said: “The real value of Dr Basden's report and evidence was that he has collected together much of the available literature and legislation chronologically in a careful and systematic fashion. He made no profession to having medical expertise ... . Of interest is his reference at p. 14 of his report to an article in Australian Factory for 1 March 1958 at pp. 36, 38 and 57 by WF Cooper entitled ‘Toxic Agents in the Factory’ where the following appears: ‘Asbestos is another destroyer of lung tissue and the maximum permissible 10 Basden’s analysis of the “literature” led to the following opinion: “... commencing with the 1959 papers of Wagner and Sleggs at the Johannesburg Conference and concluding (for the time period of concern) with the paper by Newhouse and Thompson in 1965 (... although Newhouse and Thompson presented the same information verbally at the New York Academy of Sciences Conference in October 1964), the information was being disseminated that ‘bystander’ exposures to fugitive asbestos fibres, including those transported to the receptor zones on contaminated work clothing, were causing mesotheliomas among such bystanders including housewives who washed their husbands’ work clothes.” -- 31 of 53 -- 32 concentration is 2½ million particles per cu. ft.; that is, 87 c.c. The prevention of silicosis and asbestosis revolves itself around suppression and exhausting it, plus personal protection of workers by respirators. Pre-placement and periodic medical examination are essential with radiological review.’ There was no evidence as to the circulation of this journal. However it must be indicative of information being disseminated to the industry to which I have earlier referred.” After stating that Dr Ferguson, the expert called by the respondent, had described the extent of the asbestos industry’s knowledge of the risk of asbestosis in the years 1962-1965 “rather conservatively”, the trial judge continued: “... It seems quite unlikely that industry would not have been aware of the extensive work that had been done in the United Kingdom in relation to asbestosis in the 1930's and 40's. ... [Dr Ferguson] was of the view that it was not until the publication of the paper by Newhouse and Thompson in 1965 that research and academic workers in the field became strongly conscious of the risk of mesothelioma from exposure to relatively small doses of asbestos. He suggested that the knowledge contained in that paper took several years to percolate into medical practice in the field and to the practitioners advising industry. He noted that there was no immediate government action in Australia and crocidilite importation into the country was not prohibited for another decade. It is relevant to note that the ‘Asbestos Rule’ requiring protection for asbestos workers and removal and laundering of work clothes in their factory was introduced and became effective in Queensland only from July 1971 and that, it seems, at the insistence of Dr Rathus. Dr Ferguson emphasised the rare occurrence of mesothelioma and that its gradual emergence was attributable to the long induction period of between 30 and 50 years after first significant exposure in the decades following the 1940's. He concluded that since the state of knowledge in Australia in 1962-1965 amongst medical scientists about this risk was minimal it could not be expected that industry in Australia -- 32 of 53 -- 33 would be as well informed. He said that it was not common practice in 1962-1965 in Australia to require on-site showering and laundering of work clothes in dust exposed employees although anything to reduce dust inhalation was good hygiene. ... Dr Ferguson agreed that when he read the Wagner article in early 1961 alarm bells rang for him. It was his view that that happened ‘around the world with that paper’ but he qualified it by saying ‘it’ had to be worked out. He understood the attitude at the time to be that by the time the diseases associated with asbestos manifested themselves heavy exposure to asbestos had generally been eliminated. Researchers were seeing the result of heavy exposure in the case of mesothelioma up to 50 years earlier under totally uncontrolled conditions. In many of the research papers and notes mesothelioma occurred in conjunction with asbestosis. Dr Ferguson was involved and interested in the dust protection aspect of occupational health and safety at the relevant time. He subscribed to and read most of the articles to which reference has been made. He neither discussed with his colleagues nor thought to seek to implement changes to work practices which would have reflected an appreciation of the risk to people in the position of [the appellant] from exposure to the relatively low levels of asbestos dust which occurred from the laundering of her husband's work clothes.” Brief further reference to Dr Ferguson’s evidence is warranted. He agreed that there was a “wealth of literature” available prior to 1960 in relation to asbestosis, which was then “the only disease people were concerned about in relation to asbestos”, but that it was known that “asbestos dust is most toxic and the amount needed to cause asbestosis ... not known”, and that he had probably read at the time an article dated 30 April 1960, “Complications of Asbestos”, which had referred to the need -- 33 of 53 -- 34 for “constant vigilance and new preventative methods ... if this disease is to be abolished”. It was also known that, while the risk from asbestos dust increases with the degree of exposure, some persons are more susceptible than others. While earlier reports had connected asbestos dust to mesothelioma, the 1960 article by Wagner, Slegg and Marchand was the first to receive wide publication. Even so, he and other experts continued not to be “really concerned with occasional exposure to asbestos because all our previous experience had indicated that it had taken ... heavy exposure ... to cause asbestosis”. Nonetheless “exposure was being steadily reduced” in the 1950s and 1960s “as people became more aware of the risk”. Her Honour’s finding that it was “unlikely” that Dr Rathus “... made the link between exposure to low levels of asbestos dust and the contraction of some kind of disease be it mesothelioma or anything else until after the circulation of the Newhouse and Thompson article towards the end of 1965 and did not bring Mr Johanssen's attention to these problems until about the time that that letter was written in June 1967" effectively disposed of the appellant’s case based on the respondent’s actual knowledge at the material time - which I have taken to be the end of 1962; according to the appellant’s pleading, it was Mr Johanssen’s knowledge which should be attributed to the respondent in order to determine what it actually knew. If the appellant is to succeed, it must therefore be by reference to the respondent’s “constructive” knowledge, i.e., what it ought to have known, -- 34 of 53 -- 35 by the end of 1962 and what, in consequence of what ought have been known, ought reasonably have been foreseen11 with respect to persons such as the appellant, i.e., the families, especially the wives, of its workers. 11 The Council of the Shire of Wyong v. Shirt at pp. 44ff; Jaensch; San Sebastian Pty Ltd v. Minister Administering the Environment Planning and Assessment Act 1979 (N.S.W.) (1986) 162 C.L.R. 340; Cook v. Cook (1986) 162 C.L.R. 376; Gala v. Preston (1991) 172 C.L.R. 243, at p. 253; and Nagle v. Rottnest Island Authority (1993) 177 C.L.R. 423, at p. 430; Burnie Port Authority v. General Jones Pty Ltd (1994) 179 C.L.R. 520, 543; Bryan v. Maloney (1995) 182 C.L.R. 609, 617. As was pointed out by Gibbs C.J. in Jaensch at p. 553, the relevance of foreseeability is not limited to the question whether or not a duty of care existed; questions of duty of care, causation and remoteness sometimes converge and are interdependent: Nader v. Urban Transit Authority of New South Wales (1985) 2 N.S.W.L.R. 501, 506; Mounsey v. Orange Grove Bricks Pty Ltd (W.A. Full Court, 185 of 1994, unreported, 29/2/96). -- 35 of 53 -- 36 Reference has earlier been made to the trial judge’s statement of the issues, which it is convenient to repeat at this point: “The Issues The major issues requiring determination are: Could the [respondent] foresee or ought it reasonably have foreseen that a person in the position of [the appellant] would be likely to suffer personal injury as a consequence of its operations at its ... factory? If some personal injury to [the appellant] was reasonably foreseeable was malignant mesothelioma of a class or kind of injury which was reasonably foreseeable? ...” As is apparent from those paragraphs and her Honour’s later lengthy discussion of the concept of duty of care (which I have not set out), she considered it necessary for the appellant to establish constructive knowledge of actual risk to the wives of asbestos workers from exposure to asbestos dust such as that experienced by the appellant, and accepted Dr Ferguson’s evidence that “it was not until the publication of the paper by Newhouse and Thompson in 1965 that research and academic workers in the field became strongly conscious of the risk of mesothelioma from exposure to relatively small doses of asbestos” and that the data in “that paper took several years to reach medical practitioners in the field.” It was found that neither Dr Rathus nor Dr Ferguson, who had read the scientific literature, “made the links sufficient to foresee the risk of harm from such low dose exposure [as that inhaled by the appellant]”. Those findings were plainly open to the trial judge, and cannot be disturbed by this Court. However, in -- 36 of 53 -- 37 my opinion it does not necessarily follow that the appeal must fail. The respondent was engaged in commercial activities involving a material which was known to be extremely toxic. Its operation was one of the largest in Queensland. It did not suggest that its disinterest in the welfare of its employees and, it is an obvious inference, their wives and families, place it in a more favourable position that a prudent, caring employer. It knew, or must be taken to have known, that there was scientific and medical uncertainty concerning the toxic effects of asbestos dust; the assumption that exposure to asbestos dust at the level experienced by the appellant was safe was not established at the material time, any more than it had been demonstrated that such exposure would cause illness to at least those individuals who were susceptible to the asbestos dust’s toxic effects. The position was uncertain, as the article by Wagner, Slegg and Marchand had shown and the subsequent papers and letters published before the end of 1962 had confirmed. Further, the respondent knew, or ought to have known, that the effects of exposure to asbestos dust on persons such as the appellant might not emerge for years and that any illness might be serious or even fatal. The critical question, in my opinion, is whether the trial judge was correct in her view that the respondent was not under a duty of care until “the link between exposure to low levels of asbestos dust and malignant mesothelioma had been made”, -- 37 of 53 -- 38 i.e., until the respondent had positive knowledge (actual or constructive) of actual risk, or whether, in the circumstances, the uncertainty which existed concerning the toxic effects of asbestos dust and the level of exposure which could produce illness in susceptible persons, and the risk inherent in that uncertainty, were sufficient to create a duty of care; i.e., a duty to implement inexpensive and convenient systems to eliminate the possible risk to, and/or warn, those like the appellant who might be affected. Apart from the doctrine of Rylands v. Fletcher ([1866] L.R. 1 Ex. 265; [1868] L.R. 3 H.L. 330), and the possibility left open by the Privy Council in Overseas Tankship (U.K..) Ltd v. The Miller Steamship Co Pty [1967] 1 A.C. 617, 639F that fault might not always be essential to liability for nuisance,12 the common law has consistently rejected any notion of strict or absolute tortious liability for unintentional injury: see, for example, Read v. J. Lyons & Co. Ltd [1947] A.C. 156, 172-173 per Lord Macmillan; Stevens v. Brodribb Sawmilling Co. Pty Ltd (1986) 160 C.L.R. 16, at p. 30 per Mason J., p. 42 per Wilson and Dawson JJ. However, the significance attached to dangerous activities or products was recognised in Lord Atkin’s seminal judgment in Donoghue v. Stevenson [1932] A.C. 562.13 At p. 596, his Lordship said that the following passage from Dominion Natural Gas Co. Ltd v. Collins and Perkins [1909] A.C. 640, 12 See also Burnie Port Authority at p. 556. 13 See also at pp. 611-612 per Lord Macmillan. -- 38 of 53 -- 39 646 “exactly sums up the position”: “There may be ... in the case of any one performing an operation ... a relationship of duty. What that duty is will vary according to the subject-matter of the thing involved. It has, however, again and again been held that in the case of articles dangerous in themselves, such as loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity.”14 While the doctrine in Rylands v. Fletcher has now been absorbed into the general law of negligence by the decision of the High Court in Burnie Port Authority, and little if any relevance continues to attach to “non-natural use” of land, the dangerous nature of activities or products continues to be material to both the existence or non- existence and the nature of a duty of care. Obviously, “foreseeability” of injury and hence “proximity” of relationship can be influenced by hazards known or suspected in connection with a product or activity. The majority judgment in Burnie Port Authority at pp. 550H is illuminating in the present context. As part of the discussion explaining how Rylands v. Fletcher could be assimilated into the general law of negligence, Mason C.J., Deane, Dawson, Toohey and Gaudron JJ. pointed at pp. 550-554 to the special “non-delegable” duty of care which arises in 14 See also, for example, Faulkner v. Wischer & Co. Pty Ltd (1918) V.L.R. 513; Adelaide Chemical & Fertilizer Company Limited v. Carlyle (1940) 64 C.L.R. 514; Swinton v. The China Mutual Steam Navigation Co. Ltd (1951) 83 C.L.R. 553. -- 39 of 53 -- 40 some circumstances in which the person who owes the duty is in a position of control and the person to whom the duty is owed because of the foreseeable risk of danger is in a position of special dependence and vulnerability vis-a-vis the person in control. At p. 554, their Honours continued: “The degree of care Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasized in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur [See, e.g., Thompson v. Bankstown Corporation (1953) 87 C.L.R., at p. 645; Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40, at pp. 47-48]. Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v. Fletcher is involved, the standard of care remains ‘that which is reasonable in the circumstances, ‘that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances’ [Adelaide Chemical & Fertilizer Co. Ltd. v. Carlyle (1940) 64 C.L.R. 514, at p. 523]. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of ‘reasonable care’ may involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety’ [Donoghue v. Stevenson [1932] A.C., at p. 612, per Lord Macmillan; Adelaide Chemical & Fertilizer Co. Ltd. v. Carlyle (1940) 64 C.L.R., at p. 523, per Starke J.; and, generally, Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 C.L.R., at pp. 30, 42].” Further, at pp. 556-557, the majority judgment stated: “..., a person who takes advantage of his or her control of premises to introduce a dangerous substance, to carry on a dangerous activity, or to allow another to do one of those things, owes a duty of reasonable care to avoid a reasonably foreseeable risk of injury or damage to the person or property of another. In a case where the -- 40 of 53 -- 41 person or property of the other person is lawfully in a place outside the premises that duty of care both varies in degree according to the magnitude of the risk involved and extends to ensuring that such care is taken. ...” What was said by the majority in Burnie Port Authority was reaffirmed in Bryan, in which the same members of the High Court (except Dawson J. who did not sit in Bryan) held a builder liable to the subsequent purchaser of a house which the builder had constructed for loss sustained on account of the inadequacy of the footings. At p. 619, Mason C.J., Deane and Gaudron JJ. said in a joint judgment: “As was pointed out in the recent majority judgment in Burnie Port Authority v. General Jones Pty. Ltd. [(1994) 179 C.L.R. 520, at p. 543, per Mason C.J., Deane, Dawson, Toohey and Gaudron JJ.; and see also Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 160 C.L.R. 16, at p. 53], the overriding requirement of a relationship of proximity represents the conceptual determinant and the unifying theme of the categories of case in which the common law of negligence recognizes the existence of a duty to take reasonable care to avoid a reasonably foreseeable risk of injury to another. There is no decision of the Court which directly determines the question whether the relationship between Mr. Bryan, as the builder of the house, and Mrs. Maloney, as a subsequent owner of it, possessed the requisite degree of proximity to give rise to a duty, on the part of Mr. Bryan, to take reasonable care to avoid the kind of economic loss sustained by Mrs. Maloney. Necessarily, as has been indicated, the resolution of that question requires the articulation of both the factual components of the relevant category of relationship and the identification of any applicable policy considerations. Ultimately, however, it is a question of law which must be resolved by the ordinary processes of legal reasoning in the context of the existence or absence of the requisite element of proximity in comparable relationships or with respect to comparable acts and/or damage. Accordingly, it is appropriate to approach the question through a consideration of some related situations.” -- 41 of 53 -- 42 See also per Toohey J. at p. 656, where his Honour said: “Proximity The weight of authority in this Court is that for an action to lie in negligence there must be a relationship of proximity between plaintiff and defendant. In Burnie Port Authority v. General Jones Pty. Ltd. [(1994) 179 C.L.R. 520, at p. 543], where the earlier decisions are noted, Mason C.J., Deane, Dawson, Toohey and Gaudron JJ. said of proximity: ‘As a general conception deduced from decided cases, its practical utility lies essentially in understanding and identifying the categories of case in which a duty of care arises under the common law of negligence rather than as a test for determining whether the circumstances of a particular case bring it within such a category, either established or developing.’ The question whether the appellant is liable turns upon the degree of proximity between the negligent act (strictly speaking, the class of negligent cat) relied upon by the respondent and the kind of damage sustained by her [Jaensch v. Coffey (1984) 155 C.L.R. 549, at pp. 581-582; Hawkins v. Clayton (1988) 164 C.L.R. 539, at p. 576]. Gibbs C.J. observed in Sutherland Shire Council v. Heyman [(1985) 157 C.L.R. 424, at p. 441]: ‘In deciding whether the necessary relationship exists, and the scope of the duty which it creates, it is necessary for the court to examine closely all the circumstances that throw light on the nature of the relationship between the parties.’ If the facts fall into a category which the authorities already recognize as attracting a duty of care, then, as Gibbs C.J. acknowledged [(1985) 157 C.L.R. 424, at p. 441], this process will not be necessary. But in the present case the facts do not fall into a category which this Court, at any rate, has recognized as attracting a duty of care.” I have not found any decision which directly determines whether the relationship between the appellant and the respondent possessed the requisite degree of proximity to -- 42 of 53 -- 43 give rise to a duty, on the part of the respondent, to take care to avoid the appellant suffering an asbestos dust induced illness. Broad analogies might be found with the relationship between those who manufacture or distribute dangerous products on the one hand and those who are injured in consequence of the other,15 between employers and employees,16 and with various other cases which are not so readily categorised.17 Some of these cases also provide instruction concerning the broadly equivalent inquiry concerning foreseeability which arises in the context of breach, rather than the existence or non-existence, of a duty of care: see, for example, Wyong Shire Council v. Shirt and Thompson at pp. 488 and 490. In these circumstances, I understand the Court to be required to determine whether there is a relationship of proximity by reference to the factual components and any applicable policy considerations. 15 See, for example, Scanlon v. American Cigarette Company (Overseas) Pty Ltd [No. 2] [1987] V.R. 281; Thompson v. Johnson & Johnson Pty Ltd [1991] 2 V.R. 449 16 See, for example, McLean v. Tedman (1984) 155 C.L.R. 306; Seltsam Ltd. v. Minahan; Manufacturers Mutual Insurance Ltd. v. Minahan (N.S.W. Court of Appeal, 40394 and 40380 of 1993, unreported, 20 March 1996). 17 For example, H. v. The Royal Alexandra Hospital for Children [1990] Aust. Torts Reports 67,503. -- 43 of 53 -- 44 In my opinion, policy considerations favour the appellant; the respondent was in control of the situation vis-a-vis the appellant, the wife of an employee - a factor which will often be present when one person is injured by another’s dangerous activities - and it is socially desirable that the financial detriment of such activities shift from the injured dependent person to the person undertaking and in control of the dangerous activities, especially when the latter is well-positioned and has adequate resources, to insure against liability for damage occasioned by its dangerous operation. More importantly, in my opinion, the respondent ought to have known, at the latest by the end of 1962, that there was a risk that amongst the unidentified and unknown possible toxic effects of asbestos dust was injury or illness to those, such as wives, who were exposed to it by its introduction into their homes and lives by their husbands bringing it with them from their place of employment. Further, because of the known toxicity of asbestos dust, the known uncertainty with respect to its effects, and the knowledge that injury or illness might not emerge for many years, that risk could not be dismissed as “remote”, “slight”, “far-fetched”, or “fanciful” or otherwise ignored so as to absolve the respondent of any duty of care towards the wives of its employees. Contrary to the opinion of the trial judge, I do not consider that it was open to the -- 44 of 53 -- 45 respondent to assume that the “low level” exposure to asbestos dust experienced by persons such as the appellant was safe until a “link ... with malignant mesothelioma had been made”. The “alarm bells” should have rung for the respondent, as they did for Dr Ferguson, prior to the end of 1962, whereupon, even if it considered risk of injury or illness improbable, I think that it became incumbent upon the respondent to respond by introducing the inexpensive and convenient systems which would have protected its workers’ wives and warned those women to avoid exposure to asbestos dust even in small quantities. The trial judge rejected an argument by the respondent that, if harm to the appellant was foreseeable, the illness which she suffered was of a different “class kind or character”. I agree with her Honour’s reasoned rejection of that argument, and consider it unnecessary to elaborate. -- 45 of 53 -- Accordingly, I would allow the appeal with costs to be taxed, enter judgment for the appellant for $94,916.10, and order the respondent to pay the appellant’s taxed costs of and incidental to the trial, including reserved costs, if any. -- 46 of 53 -- 2 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal. No. 282 of 1995 Brisbane Before Fitzgerald P. McPherson J.A. Helman J. [Bale v. Seltsam Pty. Ltd.] BETWEEN JOYCE BARBARA BALE (Plaintiff) Appellant AND SELTSAM PTY. LTD. (Defendant) Respondent REASONS FOR JUDGMENT - McPHERSON J.A. Judgment delivered the 23rd day of August 1996 For the reasons given by Helman J., I agree that the appeal should be dismissed. At the time when Mrs Bale was exposed to the asbestos dust carried home on her husband's clothes and his person, the state of medical and general knowledge in the community was such that the defendant could not reasonably have foreseen that she might contract the disease. There was consequently no reason for the defendant to have taken precautions against the possibility that she might suffer injury from that source. The appeal must be dismissed with costs. -- 47 of 53 -- 3 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal no. 282 of 1995 Brisbane Before Fitzgerald P. McPherson J.A. Helman J. BETWEEN: JOYCE BARBARA BALE (Plaintiff) Appellant AND: SELTSAM PTY LTD (Defendant) Respondent REASONS FOR JUDGMENT - HELMAN J. Judgment delivered 23 August 1996 Mrs Bale has appealed against the dismissal, on 14 December 1995, of her action for damages for negligence against the respondent, her husband's former employer. Mr Bale was employed by the respondent, previously called Wunderlich Limited, from 1 June 1962 to 30 August 1965 at its asbestos works at Gaythorne, Brisbane. In February 1995 the appellant was found to have malignant pleural mesothelioma and in consequence a very short life expectancy. Her case against the respondent was that asbestos dust brought home from the asbestos works by Mr Bale on his clothes and in the utility truck in which he went to and from work and then breathed in by her caused her illness, that the respondent owed her a duty of care, and that the respondent failed in its duty. At the beginning of the trial the parties told the learned trial judge that they had agreed on the quantum of the appellant's damages at $94,916.10, leaving her Honour to decide whether the respondent was liable to the appellant. -- 48 of 53 -- 4 The appellant and Mr Bale were married in 1957 and have lived together ever since. Mr Bale has had other jobs before and after he worked for the respondent but none in which he was exposed to asbestos dust. The appellant's only exposure to asbestos dust - apart from an insignificant incident over twenty years ago when she helped her husband cut and nail fibro sheeting when renovating their house - was in the period when Mr Bale worked at the asbestos works. Her Honour was satisfied that the dust breathed in by the appellant when Mr Bale came home from work with dust on his clothes and body, when she shook out and laundered his work clothes, and when she cleaned and travelled in his truck caused her illness. No issue was taken before us about that finding. The central matter in issue on the appeal was her Honour's finding that, at the time when Mr Bale was employed by the respondent, it was not reasonably foreseeable that a person in the position of the appellant would sustain personal injury of any kind as a consequence of being exposed to asbestos dust to the extent that she was. There was much evidence about the knowledge scientists had gained in this century about the damage that the breathing of asbestos dust can do to the human body. Knowledge on this subject increased greatly as time went on. At first scientific interest concentrated, understandably, on the effect on those most exposed to the dust: the workers in the asbestos industry. Gradually, however, it began to be understood that other people, who were not exposed to such large quantities of the dust as workers were, could also be affected. The evolution of scientific interest in and investigation of the effect of asbestos dust was then not unlike the evolution of concern about tobacco smoking from the effect on smokers to the effect on those who inhale the smoke exhaled by others. Having considered the evidence as to the progress of scientific knowledge about the effect of breathing asbestos dust, her Honour found that until publication towards the middle of 1965 of a paper by Muriel L. Newhouse and Hilda Thompson entitled "Mesothelioma of Pleura -- 49 of 53 -- 5 and Peritoneum Following Exposure to Asbestos in the London Area" in the British Journal of Industrial Medicine (22,261) "there was no published material which identified dosages as low as that inhaled by Mrs Bale with the contraction of harmful disease". The authors of the paper, which was received by the journal for publication on 11 February 1965, were attached to the Department of Occupational Health and Applied Physiology in the London School of Hygiene and Tropical Medicine. A series of eighty-three patients from the London Hospital with a diagnosis of mesothelioma confirmed by necropsy or biopsy had been studied for possible exposure to asbestos. There were forty-one men and forty- two women. Twenty-seven of the patients had peritoneal and fifty-six pleural tumours. The earliest death recorded was in 1917, but only ten of the series died before 1950, and forty (forty- eight per cent.) between 1960 and 1964. The study revealed that nine of the patients were people whose relatives worked with asbestos. The authors recorded what they found in those cases of domestic exposure as follows: Domestic Exposures.—The group of nine, seven women and two men, whose relatives worked with asbestos, are of particular interest. The most usual history was that of the wife who washed her husband's dungarees or work clothes. In one instance a relative said that the husband, a docker, came home `white with asbestos' every evening for three or four years and his wife brushed him down. The two men in this group, when boys of 8 or 9 years old, had sisters who were working at an asbestos factory. One of these girls worked as a spinner from 1925 to 1936. In 1946 she died of asbestosis. The press report of the inquest states: `She used to return home from work with dust on her clothes'. Her brother had apparently no other exposure to asbestos; he started work as a shop assistant, then became a sawyer of iron girders until 1948 when he worked as a loader of groceries in the docks for five years (but never on dusty cargoes) and then returned to sawing iron girders. He died in 1956 of a pleural mesothelioma. (p.264) The authors concluded: There seems little doubt that the risk of mesothelioma may arise from both occupational and domestic exposures to asbestos. Wagner and other (1960) described patients with no exposure other than living as a child in the vicinity of the asbestos mines. A high incidence of asbestos plaques of the pleura has been found in the population living near an anthophyllite mine in Finland -- 50 of 53 -- 6 (Kiviluoto, 1960). More evidence is required of an increased risk to the population living in the neighbourhood of asbestos factories or other areas, such as dockyards, where asbestos is used in quantity. (p.266) A number of experts gave evidence before her Honour. Two of them were of particular importance: Dr Emanuel Rathus, who was the Queensland Director of Industrial Medicine from 1957 to 1982, who was called by the appellant, and Professor Emeritus David Ferguson, consultant occupational physician, who was called by the respondent. Dr Rathus, who before coming to Queensland in 1952 had been a specialist in chest diseases in South Africa, first visited the respondent's works in May 1957, and after that at least once a year when he was Director of Industrial Medicine, probably twice a year in the early years. In the same years he visited other Queensland asbestos works with the same frequency. Her Honour found that Dr Rathus had been and continued to be an enthusiastic and vigorous proponent for occupational health and safety, that asbestos and lead were his chief concerns in his early years in Queensland, that he had made recommendations concerning improvement in practices at asbestos works in Queensland, and that he had from time to time expressed satisfaction with the way in which his recommendations had been implemented. Her Honour recorded that Dr Rathus would bring visiting health experts and medical students to the respondent's works in Brisbane to show them how an efficient modern factory could handle such a dangerous substance with safety. He read widely and kept up with the progress of scientific knowledge in his field. Her Honour thought it "unlikely that he made the link between exposure to low levels of asbestos dust and the contraction of some kind of disease be it mesothelioma or anything else until after the circulation of the Newhouse and Thompson article towards the end of 1965" and did not bring those problems to the attention of Mr Warner Johanssen, a works manager employed by the respondent, until about June 1967. Dr Ferguson had been closely concerned with thoracic medicine and occupational health for many years. From 1961 to 1965 he was Senior Medical Officer in the Occupational -- 51 of 53 -- 7 Health Section of the School of Public Health and Tropical Medicine in the University of Sydney. His evidence was that it was not until the publication of the Newhouse and Thompson paper that research and academic workers in the field became strongly conscious of the risk of mesothelioma from exposure to relatively small doses of asbestos and that the data in that paper took several years to reach medical practitioners in the field. Her Honour thought it "of significance" that neither Dr Rathus nor Dr Ferguson, who had read the scientific literature, "made the links sufficient to foresee the risk of harm from such low dose exposure [as that inhaled by the appellant]". Had Mrs Bale been successful in establishing that physical injury to a class of persons of which she was one might reasonably have been foreseen as a possible consequence of the respondent's acts or omissions, there could be little doubt that the requirement of proximity as it has been explained in a number of decisions of the High Court would have been satisfied: see e.g. Jaensch v. Coffey (1984) 155 C.L.R. 549, at pp. 584-585; Gala v. Preston (1991) 172 C.L.R. 243, at p.253; and Nagle v. Rottnest Island Authority (1993) 177 C.L.R. 423, at p.430. But her Honour concluded on the evidence before her - and in my view correctly - that at the relevant time that consequence was, having regard to the state of scientific knowledge on the subject, not reasonably foreseeable. It was not far off being so because the connexion was on the point of being revealed to the scientific world by Newhouse and Thompson, and through it to the industry and public health officials. It was regrettably too late for the appellant's well-being and too late for her to succeed on the issue in her action. It is true there had been suggestions in the scientific papers about the connexion - most importantly in a paper by J.C. Wagner, C.A. Sleggs, and P. Marchand, "Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province" (1960) in the British Journal of Industrial Medicine 17,260 - and there had been hints in letters to a learned journal - those of Dr W.J. Smither, Chairman of the Asbestos Research Council, J.C. Gilson, and J.C. Wagner in the British Medical Journal of 3 -- 52 of 53 -- 8 November 1962 (p.1194), and W.T.E. McCaughley, O.L. Wade, and P.C. Elmes in the same journal of 24 November 1962 (p.1397) - but not enough to establish a proper foundation for the appellant's case. Her Honour's decision on the appellant's claim was based, as I have related, on her assessment of the appellant's exposure to asbestos dust as low. Mr Stenson argued for the appellant that her Honour erred in making that finding. I see no merit in that submission. The distinction between the prolonged and intense exposure of workers in asbestos works and the brief and less intense exposure of family members of workers is necessarily imprecise in the absence of measurement, but nonetheless valid and supported by the weight of evidence. I therefore think that no error has been shown in her Honour's decision and that the appeal should be dismissed with costs. -- 53 of 53 --