Harold Luntz has provided the following excellent summary of today's important High Court of Australia decision:
"In Amaca Pty Ltd v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis [2010] HCA 5 (3 March 2010) http://www.austlii.edu.au/au/cases/cth/HCA/2010/5.html the High Court, in a unanimous judgment of all seven members of the court, allowed an appeal from State of South Australia v Ellis [2008] WASCA 200 (26 September 2008). The sole issue before the High Court was whether the plaintiff (the administrator of the estate of Mr Cotton) had proved that his exposure to asbestos in each of different places was a cause of his developing lung cancer when he was also a smoker. The High Court held that he had not done so.
Counsel for the plaintiff sought to justify the decision of the majority of the WA CA on the ground that, because of the synergistic effect of asbestos and smoking, an inference could be drawn that the exposure to asbestos contributed to the lung cancer. He refused to rely on the Fairchild line of cases and the High Court pointed out that it therefore didn't have to consider them or the SCC's decision in Resurfice. Nor was Bonnington Castings relevant because there the silicosis was dose-related and the "guilty" dust made a material contribution along with the "innocent" dust (my paraphrasing). After analysing the epidemiological evidence, the High Court concluded that no inference of causation could be drawn. Here the "the basic and unpalatable fact [was] that no scientific or medical examination can now say, with certainty, what caused Mr Cotton's cancer or lung cancer in any other particular case" (at [70]). The law has to render this uncertainty certain. "
Observing that a small percentage of cases of cancer were probably caused by exposure to asbestos does not identify whether an individual is one of that group. And given the small size of the percentage, the observation does not, without more, support the drawing of an inference in a particular case." "
Long-time ODG readers may note that the HC's view of Bonnington Castings is at least consistent with the view I take of the decision- that causation was clearly established there on a "but for" basis, because the smaller amount of "guilty" dust nevertheless made an actual contribution to the disease, as it was the result of a cumulative process. But it is a pity that the Court makes us wait for another day to hear their views on whether or not Fairchild forms part of the law of Australia.
Regards
Neil F
Neil Foster
Senior Lecturer, LLB Program Convenor Newcastle Law School Faculty of Business & Law
MC158, McMullin Building University of Newcastle Callaghan NSW 2308 AUSTRALIA ph 02 4921 7430 fax 02 4921 6931