Reported Decision : (2001) 21 NSWCCR 544 New South Wales Court of Appeal CITATION : Cockatoo Dockyard v Browne [2001] NSWCA 58 FILE NUMBER(S) : CA 40639/99; 40816/99 HEARING DATE(S) : 29 November 2000 JUDGMENT DATE : 5 April 2001 Cockatoo Dockyard Pty Limited PARTIES : v Philip John Browne (Executor of Late David Charles Browne) & Anor JUDGMENT OF : Priestley JA at 1; Handley JA at 2; Heydon JA at 19 LOWER COURT JURISDICTION : Dust Diseases Tribunal LOWER COURT DDT 26/99 FILE NUMBER(S) : LOWER COURT Johns J JUDICIAL OFFICER : T G R Parker (for appellant in the appeal and applicant in leave application) COUNSEL : A J Leslie QC/A O Leslie (for respondent in appeal, cross appellant in cross-appeal and opponent in application) Mr Kazera Sub App for Commonwealth observing Allen Allen & Hemsley (Appellant) SOLICITORS : Turner Freeman (Respondent 1) Australian Government Solicitor (Respondent 2) CATCHWORDS : NEGLIGENCE - personal injury - breach of duty - causation - remoteness - PRACTICE & PROCEDURE - motions for summary dismissal of appeals discouraged LEGISLATION CITED : Dust Diseases Tribunal Act Bonnington Castings v Wardlaw [1956] AC 613 Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613 Quinn v Cameron & Robertson Ltd [1958] AC 9 McGhee v National Coal Board [1973] 1 WLR 1 CASES CITED: Bennett v Minister of Community Welfare (1992) 176 CLR 408 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 Mt Isa Mines v Pusey (1970) 125 CLR 383 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 DECISION : Appeal and cross-appeal each dismissed. Orders made THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40639/99 40816/99 DDT 26/99 PRIESTLEY JA HANDLEY JA HEYDON JA 5 April 2001 COCKATOO DOCKYARD PTY LIMITED v PHILIP JOHN BROWNE (Executor of Late David Charles Browne) & Anor NEGLIGENCE - personal injury - breach of duty - causation - remoteness PRACTICE AND PROCEDURE - motions for summary dismissal of appeals discouraged The appellant was the employer of a fitter who brought an action in the Dust Diseases Tribunal after contracting mesothelioma as a result of work-related contact with asbestos dust. Judgment was entered in favour of the plaintiff and the employer appealed under s 32 of the Dust Diseases Tribunal Act. The appellant argued three grounds on which The Tribunal had erred in law: (1) there was no legal basis for the finding that a breach of duty had been established; (2) there was no evidence to support the finding that the breaches of duty caused the injury; and (3) the damage was too remote a consequence of any breach of duty. The worker's executor filed a cross-appeal on damages. The respondent also filed a motion for summary dismissal of the appeal on the ground that no question of law was involved. HELD, dismissing the appeal and cross-appeal: (1) His Honour was correct in finding that a breach of duty had been established; (2) The argument that the Judge was incorrect in finding that the breaches of duty caused the plaintiff 's injury was contrary to established authority in the House of Lords and the High Court which had been collected and considered by the Court of Appeal in Commonwealth v McLean (1996) 41 NSWLR 389; (3) The argument that the Judge was bound, as a matter of law, to decide that the damage was too remote a consequence of any breach of duty was contrary to Commonwealth v McLean where the Court of Appeal held that the question whether the damage suffered by a plaintiff was damage of the same kind as foreseeable damage was a question for the jury; (4) The executor's application to re-open the Judge's assessment of damages was contrary to the principles applied in Doherty v Liverpool District Hospital (1991) 22 NSWLR 284, and the exercise of the Judge's power under the slip rule did not justify a different approach; (5) The Court of Appeal actively discourages motions for summary dismissal of appeals because experience has shown that they do not produce a useful result but only waste the time of the parties and the Court and result in unnecessary costs. ORDERS (1) Appeal and cross-appeal each dismissed with costs. (2) Summons for leave to appeal dismissed with costs. (3) Notice of motion of 3 March 2000 dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40639/99 40816/99 DDT 26/99 PRIESTLEY JA HANDLEY JA HEYDON JA 5 April 2001 COCKATOO DOCKYARD PTY LIMITED v PHILIP JOHN BROWNE (Executor of Late David Charles Browne) & Anor JUDGMENT 1 PRIESTLEY JA: I agree with Handley JA. 2 HANDLEY JA: The appellant has appealed from the judgment of the Dust Diseases Tribunal (Johns J) given on 8 July 1999, as revised on 26 July, for $167,660 entered in favour of the late David Browne against the appellant and the Commonwealth. The plaintiff had contracted mesothelioma and at the date of trial was thought to have only 6 months to live. The Commonwealth has not appealed. By s 32 of the Dust Diseases Tribunal Act, as amended by Act No. 49 of 1998, an appeal to this Court is limited to questions of law or questions as to the admission or rejection of evidence. 3 The plaintiff was employed by the appellant as a fitter at Cockatoo Dockyard from mid 1948 until January 1950. He worked with asbestos materials and was exposed to asbestos and other dusts in the turbine shop and in confined spaces in the engine rooms of ships. The turbine shop was dusty, dust was visible in the atmosphere, and settled on the surfaces. Dust was also visible in the atmosphere in the places on board ship where he worked. The plaintiff had to walk through the boiler shop to get to and from the cruiser wharf and the ships moored there. The boiler room was also dusty. The Judge found that the plaintiff 's exposure to respirable asbestos dust was constant and consistent and was a feature of his work. A CT scan taken of the plaintiff 's lungs in February 1999 showed pleural thickening and plaques consistent with a significant degree of exposure to asbestos dust. The plaintiff had not been exposed to significant asbestos dust in his earlier employments and after January 1950 he worked in the timber industry and was not exposed to asbestos dust. 4 The Judge found that no precautions against asbestos dust were taken by the appellant during the period of the plaintiff 's employment. The known and available precautions included dampening down, the use of face masks, dust extraction fans, and vacuum cleaning of floors and dusty surfaces. He also found that no warnings were given to employees. The appellant had made no attempt to measure atmospheric dust levels in any of the places where asbestos was being worked on in the dockyard. The failure to take any precautions to minimise dust exposure and protect workers, such as the plaintiff, against asbestos dust was held to be a breach of the duty of care owed by the appellant to the plaintiff. 5 The Judge found that at the time the plaintiff was employed at the dockyard the risks of asbestosis and lung cancer, as a result of exposure to asbestos dust, were well known. Both were and were known to be dust related in the sense that the greater the exposure the greater the risk. The more or less constant, and at times heavy, exposure of the plaintiff to asbestos dust in his work at the dockyard exposed him to the risks of these injuries which the Judge held were neither far fetched nor fanciful. 6 Causation in fact was found because the plaintiff 's only significant exposure to asbestos dust had been during his employment with the appellant. On this basis the Judge held that the appellant's breach of its duty of care, and the foreseeability of injury from asbestosis or lung cancer, entitled the plaintiff to recover damages for his mesothelioma as this was an injury of the like class or character. 7 The Judge found that at the relevant time means were available to the appellant to control the dust hazard in an industrial situation and that their use would have minimised, and perhaps avoided, the risk to the plaintiff. He further found that the plaintiff 's unnecessary exposure to asbestos dust during his employment with the appellant caused or materially contributed to his contraction of mesothelioma because additional exposure increased the risk of contracting this disease. 8 Mr Parker for the appellant put three principal submissions in support of his argument that the decision of the Tribunal was vitiated by error of law, namely: (1) There was no legal basis for the Judge's finding that a breach of duty had been established. This was also expressed as a submission that the Judge failed to find, as he was required to do by Wyong Shire Council v Shirt (1980) 146 CLR 40, what were the specific steps which the appellant should have taken to minimise the dust hazard. (2) There was no evidence to support the Judge's finding that the breaches of duty caused, or materially contributed to the plaintiff 's injury. This was also expressed as a submission that the Judge failed to ask himself whether the taking of precautions would have made a difference. (3) The plaintiff 's damage, in the form of his mesothelioma, was too remote a consequence of any breach of duty by the appellant, this either being itself a question of law or put differently there was no evidence that mesothelioma was damage of a like kind as asbestosis or lung cancer. 9 There is nothing in the first point. The Judge found that asbestos dust was, and was then known to be, dangerous, toxic, carcinogenic, and capable of causing fibrosis leading to death. He also found that there were known precautions which could and should have been taken to reduce the dust hazard, namely the dampening down of asbestos materials, at least in the turbine and boiler rooms, the use of extractor fans to remove dust as it was generated, the use of vacuum cleaners to remove settled dust, and the use of face masks to reduce a worker's dust intake. He found that none of these steps was taken. There was ample evidence to support all these findings. 10 The second submission on causation is contrary to established authority at the highest levels, including decisions of the House of Lords in Bonnington Castings v Wardlaw [1956] AC 613, Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613, and Quinn v Cameron & Robertson Ltd [1958] AC 9, which dealt with an employer's liability for breach of a statutory duty to remove silica dust generated by industrial processes. A fourth decision of the House of Lords in McGhee v National Coal Board [1973] 1 WLR 1 established that an employer's breach of statutory duty to provide showering facilities to enable brick workers to wash off brick dust was a cause of a worker's industrial dermatitis because his need to cycle home without a shower added materially to the risk that this disease might develop. 11 The judgment of Gaudron J in Bennett v Minister of Community Welfare (1992) 176 CLR 408, 420-1 is directly in point. Her Honour approved the statement of Mason J in Sutherland Shire Council v Heyman (1985) 157 CLR 424, 467 that: "… when there is a duty to take a precaution against damage occurring to others … breach of the duty may be regarded as materially causing or materially contributing to that damage, should it occur, subject of course to the question whether performance of the duty would have averted the harm". 12 She continued: "… generally speaking, if an injury occurs within an area of foreseeable risk, then, in the absence of evidence that the breach [of duty] had no effect … , or that the injury would have occurred even if the duty had been performed, it will be taken that the breach … caused or materially contributed to the injury". 13 These authorities were collected and considered by this Court in Commonwealth of Australia v McLean (1996) 41 NSWLR 389, 408-9. The principles established by these cases are particularly relevant where an employer has taken no steps to minimise a foreseeable risk to his employees, and no steps to measure the extent of that hazard. Its own breaches of duty prevent it from discharging its evidentiary onus of establishing that its breaches had no effect, or that the injury would have occurred even if the duty had been performed. The second point also fails. 14 The third point that the Judge was bound, as a matter of law, to decide that the appellant was not liable for the plaintiff 's mesothelioma, is also contrary to established authority in this Court. In Commonwealth v McLean (above) at 402-7 this Court held, citing authority including Mt Isa Mines Ltd v Pusey (1970) 125 CLR 383, 402, 412 that the question whether the damage actually suffered by a plaintiff was damage of the same kind as foreseeable damage was a question of fact for the jury. The decision, which was not challenged, is fatal to the appellant's third point. The appeal therefore fails on all grounds and must be dismissed with costs. 15 The appellant also sought leave to appeal from the Judge's refusal to exercise the power in s 13(6) of the Dust Diseases Tribunal Act to re-open his assessment of damages. The employer's application to the Judge was based on the death of the plaintiff within 10 days of the delivery of judgment, contrary to his foreseen life expectancy at that time of six months as found by the Judge. The Judge had based his assessment of the plaintiff 's future economic loss and general damages on that prognosis. Following the delivery of judgment the Judge re-opened his assessment under the slip rule to correct a mathematical error where the correction favoured the plaintiff. The appellant's application to re-open because of the unexpected death of the plaintiff was contrary to the principles applied in Doherty v Liverpool District Hospital (1991) 22 NSWLR 284, and the exercise of the Judge's power under the slip rule did not justify a different approach. The Court refused leave to appeal at the hearing without calling on Mr Leslie QC who appeared for the executor. An order should be made that the summons for leave to appeal be dismissed with costs. 16 The executor of the deceased plaintiff cross-appealed from the Judge's assessment of damages on the ground that the damages assessed for past voluntary care were inadequate. Mr Leslie submitted that the award for this item was vitiated by the same mathematical error as the award for future care which the Judge corrected under the slip rule, but the Judge did not agree. Mr Leslie was unable to identify any arguable question of law and the cross-appeal must also be dismissed with costs. 17 The final matter concerns the cost of a motion for summary dismissal of the appeal, on the ground that no question of law was involved, filed by the executor on 3 March 2000 nearly 9 months before the appeal was heard. The Registrar declined to list the motion before a Judge and adjourned it to the hearing of the appeal. The Court actively discourages motions of this kind because experience has shown that they do not produce a useful result but only waste the time of the parties and the Court and result in unnecessary costs. The motion will be dismissed, but the executor must pay the appellant's costs of the motion. 18 The formal orders of the Court are: (1) Appeal and cross-appeal each dismissed with costs. (2) Summons for leave to appeal dismissed with costs. (3) Notice of motion of 3 March 2000 dismissed with costs. 19 HEYDON JA: I agree with Handley JA. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.