Allsop P has written a primer for Commonwealth judges which should become required reading. I suppose it will get mentioned in the Amaca case Neil mentioned in which the HCA gave leave.
I find some humour - I suppose I should have put an adjective in front of humour but I couldn't decide on the most appropriate choice - in the fact that Allsop P's reference to Resurfice and McLachlin CJ's 1997 Sydney symposium paper ("Proving the Connection") states a view that is probably mostly inconsistent with how Resurfice material contribution is, currently, understood and (not) applied by Canadian appellate courts.
That is, except in Ontario where Resurfice material contribution still means exactly what Athey material contribution meant, only the conditions for its application are different. And, somehow, in the past almost 5 years, we haven't had even one case that validly required the application of the material contribution doctrine yet we had so many cases which did between late 1996 and early 2007.
Once I determine which natural law it was that changed, in common
law Canada, in early Feb 2007, and how the effect was contained within our borders, I'll let you know.
Funny thing about the situation is that, in the immediate aftermath of Resurfice, a gaggle of defence lawyer types who ought to have known better were quick to write brief notes - many appeared on their firms' websites and in trade magazines - about how Resurfice would level the jurisprudential playing field by eliminating the pro-plaintiff use of the Athey form of material-contribution to injury doctrine. It seems, now, that they were partly right. The use of the doctrine has been (mostly) formally eliminated. There's no discernible difference in the result, though, in individual cases or
overall.
If the title weren't already used, somebody could write a case comment about the results of Resurfice: "As if it never happened".
Kidding aside, I suppose that, from the (common law) Canadian perspective, the fact that most asbestos cases are work-injury related, so don't reach the courts because of our workers' compensation regime, has so far saved the judges from having to wrestle with the difficulties of causation issues in asbestos-caused injury. However, the SCC granted leave to appeal in Clements v Clements 2011 CanLII 36004 (from 2010 BCCA 581) where the issue will be the meaning of the Canadian material-contribution doctrine;
I'm told that leave to appeal will be sought in Ediger v. Johnston 2011 BCCA 253; and (though I haven't checked) I suspect that the trial jdecisions in Goodman v. Viljoen, 2011 ONSC 821 and Leslie v. S & B Apartment Holding Ltd., 2011 NSSC 48 will be appealed, so perhaps the terrain is about to be ... clarified (somewhat; or not) even though none of these cases are asbestos-injury. For Canada, it seems that medical negligence cases (Snell, Walker Estate (broadly), Goodman and Ediger are all medical negligence cases) and successive accident cases (Athey) provide the substantive content.
Cheers,
David Cheifetz
From: Neil Foster <Neil.Foster@newcastle.edu.au>
To: obligations@uwo.ca
Sent: Monday, August 8, 2011 10:35:07 PM
Subject: ODG: Causation in asbestos cases
Dear Colleagues;
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
Neil Foster
Senior Lecturer
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