Those who are interested in such matters may like to read the latest decision on causation in asbestos/lung cancer claims in Evans v Queanbeyan City Council [2011] NSWCA 230 (5 Aug 2011) http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=153809. There is what I regard as an excellent review of the authorities by Allsop P concluding that it is not currently open to Australian courts to apply the Fairchild/Barker/Grief reasoning from the UK, and hence mere increase in risk cannot amount to material contribution and cannot satisfy the need for proof of causation on the balance of probabilities. For Canadian colleagues there is even a quote from Resurfice at [23], in the context of a review of overseas decision which will not be followed in NSW unless and until the High Court of Australia directly addresses the issue.

"[31] The above discussion of Fairchild and Barker v Corus reveals, at once, the policy questions involved in any conclusion that increasing risk is sufficient for a conclusion of causation or causal responsibility or legal responsibility. Such policy questions are a matter for the High Court, not this Court."

Basten JA comments on the fact that the casual reader may be surprised by the result that a plaintiff in an earlier case was held to be entitled to succeed on a similar claim, but says that this is a result of the difficult medical issues involved and that an earlier trial judge had been persuaded by expert evidence differently to the judge in these proceedings.

"[99] To interested parties reading these cases, it might be thought that similarly placed plaintiffs should, if the law is properly administered, either always succeed or always fail. The reason why that is not so is that the medical evidence is not a fixed quantity, but a variable. Further, because the medical evidence is contestable and contested, the outcomes may legitimately differ. This is a function of the shortcomings of medical science, not of the administration of justice. "

At any rate, I think the decision is correct on the current law in Australia. It may provide the groundwork for an appeal to the HC to resolve the issue finally, but we shall have to wait and see.

Regards

Neil