Those interested in causation will be interested in a new article in
the McGill Law Journal by Russ Brown which attacks the UK courts over
reliance on scientific-based evidence and conclusions as to causation,
see “The Possibility of ‘Inference Causation’: Inferring Cause-in-Fact
and the Nature of Legal Certainty” (2010) 55 McGill Law Journal.
Jason Neyers Associate Professor of Law Faculty of Law University of Western Ontario N6A 3K7 (519) 661-2111 x. 88435
Neil Foster wrote:
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