ICI AUSTRALIA OPERATIONS PTY LTD v WALSH and ORS [1997] NSWCA 157

ICI AUSTRALIA OPERATIONS PTY LTD v WALSH and ORS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and HANDLEY JJA 8 August 1997, 3 October 1997 [1997] NSWCA 157

NEGLIGENCE — CAUSATION — MULTIPLE — DEFENDANTS — LATENCY PERIOD OF MESOTHELIOMA — EXPERT EVIDENCE — WHETHER EXPOSURE TO ASBESTOS DUST CAUSALLY RELEVANT AS A MATTER OF PROBABILITY

The appellant was one of five defendants found liable in negligence by Curtis J for the mesothelioma contracted by the first respondent, Mr Walsh (now deceased). The defendants employed the first respondent between 1964 and 1996, the appellant between 1986 and 1996. The trial judge found that all asbestos exposure was causative. The findings of liability against the other defendants were not challenged. In finding that exposure during Mr Walsh's employment with the appellant was a "cause" of the disease, the trial judge accepted expert evidence that a latency period for this disease could be under 10 years.

HELD: Appeal allowed (per Mason P and Handley JA; Meagher JA dissenting): (1) The trial judge's findings that all asbestos exposure was causative and that the risk of developing mesothelioma was materially increased by further exposure during Mr Walsh's employment with the appellant was not open on the evidence given that neither expert accepted the theory that mesothelioma was the result of a person's total exposure to asbestos. Bonnington Castings Ltd v Wardlaw [1956] AC 613; McGhee v National Coal Board [1973] 1 WLR 1; Wilsher v Essex Area Health Authority [1988] AC 1074 referred to. (2) The expert evidence did not support a finding that the mesothelioma contracted by Mr Walsh was caused or materially contributed to by his asbestos exposure while employed by the appellant.

Mason P I have had the advantage of reading the judgment of Meagher JA. Unfortunately I disagree with it.