The appeal by CSR Limited and Midalco Pty Limited was upheld against Amaca Pty Limited, in respect of a cross claim by Amaca for damages paid to Mrs Belinda Dunn, who was exposed to crocidolite asbestos when she was aged 3 – 4.
The issue in dispute was the state of knowledge of the appellants as at 1965 and how this translated into the risk of transitory exposure resulting in pleural mesothelioma. The majority held that this was not satisfied (with Hodgson JA dissenting) at paragraph 152:
“152 On the basis of the material before the Tribunal, the risk to persons in the circumstances of the plaintiff would, in September 1965, have been dismissed as remote, slight or far-fetched. The known uncertainty may have precluded the use of the adjective “fanciful”, but the risk relied on was of a kind which, in a practical sense, either required widespread public education, or the removal of blue asbestos from all building products. There was, as counsel for the appellants put it, no basis in the evidence for identifying, in 1965, a degree of foresight capable of satisfying the test necessary for the duty of care. The error of the trial judge was his understanding (or decision) as to the flexibility allowed by the adoption in CSR Ltd v Young of the approach of Fitzgerald P in Bale. While it was unnecessary (and not contended for in the present case) to find in 1965 scientific evidence of a connection between exposure of the kind which arose in the present case and mesothelioma, there had to be more than the mere fact that the level of uncertainty was inconsistent with the affirmative rejection of such a causal link. Similarly, ‘known toxicity’ did not by itself create a duty to this plaintiff. There are many toxic materials produced in an industrial context which need to be disposed of or handled with care. The mere fact of toxicity does not mean that they cannot be used or disposed of safely. What needed to be established was some level of appreciation in September 1965 that use of blue asbestos in building products of the kind manufactured by Amaca (and in earlier years by the appellants) carried real risks for householders.”
The dissenting judgement of Hodgson JA is very robust in the alternative and persuasive in the points made. The contentious issue is far from resolved.
Brisbane Barrister – David Cormack