Dear Members,

Thanks to colleagues for sharing this case. It is worth noting that Fairchild may well not apply on these facts as the law stands in England. In Barker v Corus, when the House of Lords reconsidered the Fairchild exception, Lord Hoffmann admitted to being wrong on one point in the earlier decision, which related to whether Fairchild can apply where there are two different causative agents (and its consistency with Wilsher). At paras 23-4, his Lordship said:

"The question which I raised [in Fairchild] about different kinds of dust is not so much about the principle that the causative agent should be the same but about what counts as being the same agent. Lord Rodger identified this point when he said, at pp 118-119, para 170:

'The claimant must prove that his injury was caused, if not by exactly the same agency as was involved in the defendant's wrongdoing, at least by an agency that operated in substantially the same way. A possible example would be where a workman suffered injury from exposure to dusts coming from two sources, the dusts being particles of different substances each of which, however, could have caused his injury in the same way.'

If the distinction between Fairchild and Wilsher does not lie in the fact that in the latter case a number of very different causative agents were in play, I think it would be hard to tell from my Fairchild opinion what I thought the distinction was. In my opinion it is an essential condition for the operation of the exception that the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent which operated in the same way. It may have been different in some causally irrelevant respect, as in Lord Rodger's example of the different kinds of dust, but the mechanism by which it caused the damage, whatever it was, must have been the same. So, for example, I do not think that the exception applies when the claimant suffers lung cancer which may have been caused by exposure to asbestos or some other carcinogenic matter but may also have been caused by smoking and it cannot be proved which is more likely to have been the causative agent."

That example would appear to fit the facts of Ellis: I wonder whether this may be why counsel avoided relying on it.

Smith LJ had something to say on the point in a similar case, involving smoking and carcinogens, in Novartis Grimsby Ltd v Cookson [2007] EWCA Civ 1261 (http://www.bailii.org/ew/cases/EWCA/Civ/2007/1261.html) at [71]-[74], where she referes to Bonnington, and see also the views of Foskett J in AB v Ministry of Defence [2009] EWHC 1225 (QB) at [223]-[237].

Best wishes,

James

--

James Lee

Lecturer

Director of the LLB Programme

Birmingham Law School

University of Birmingham

Edgbaston

Birmingham

B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629

E-mail: j.s.f.lee@bham.ac.uk

________________________________________

From: Neil Foster [Neil.Foster@newcastle.edu.au]

Sent: 03 March 2010 04:52

To: obligations@uwo.ca

Subject: ODG: Causation in the HCA- Ellis

Dear Colleagues;

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

http://www.newcastle.edu.au/staff/profile/neil.foster.html

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