The Full Court of the South Australian Supreme court recently considered section 8(2) of the Dust Diseases Act 2005 (SA) in the case of BHP Billiton Limited v Van Soest1. In short, section 8(2):
Creates a rebuttable presumption in favour of a plaintiff in relation to the element of foreseeability in a dust disease action. The plaintiff must prove that a risk was foreseeable in order to establish a defendant’s liability.
Establishes a presumption that, absent contrary proof, a defendant who carried on a prescribed industrial or commercial process that could have resulted in a plaintiff’s exposure to asbestos dust knew, at the relevant time, that such exposure could result in a plaintiff contracting a dust disease.
Amongst other things, the Full Court of the South Australian Supreme Court rejected a Defendant’s arguments that section 8(2) does not establish the element of foreseeability in negligence; and does no more than create a presumption of a defendant’s “generalised knowledge” of the dangers of exposure to asbestos.
The Court held that section 8(2) creates a presumption of knowledge on the part of the defendant that a plaintiff may develop a dust disease merely upon proof that a defendant conducted a prescribed industrial or commercial process that could have resulted in a plaintiff’s exposure, but not a given level of exposure, to asbestos.
This case provides guidance on a statute that aids a plaintiff’s case in a dust disease action.