Dear Colleagues;
The High Court of Australia handed down its decision in
Amaca Pty Ltd v Booth; Amaba Pty Ltd v Booth [2011] HCA 53 (14 December 2011)
http://www.austlii.edu.au/au/cases/cth/HCA/2011/53.html today. This was an appeal supposedly related to whether or not evidence of increase in risk could be accepted as establishing causation in a personal injury claim based on exposure to asbestos. It was hoped that the Court would offer some clarity on whether or not
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 represents the common law of Australia.
Formally the court has once again declined to rule on that specific point (see eg French CJ at [52] "not necessary in this case to consider the application of any modified
concept of causation of the kind developed in Fairchild"). The court was able to rule in favour of the injured worker here because the trial judge had not based his decision on the "increased risk" theory, but instead had accepted the evidence of medical experts provided by the plaintiff. (For some odd reason, the defendants offered no medical experts on the issue.) The evidence of those experts satisfied the judge that "all exposures to chrysotile asbestos,
other than trivial or de minimis exposure, occurring in a latency period
of between 25 and 56 years, materially contribute to the cause of
mesothelioma" (quoted at [75] by Gummow, Hayne & Crennan JJ).
This, it will be appreciated by those who follow these issues, is different expert testimony to that accepted in Fairchild, where it was held that a single fibre might have caused the disease, and hence it was impossible to distinguish between exposures for which three separate employers were responsible. Acceptance of the view that, the more fibres, the greater chance of the disease, allowed the judge to find that exposure of the plaintiff in 27 years' of work for the two defendants was, on balance of probabilities, a material cause of the disease (rather than that it was caused by background exposure or a couple of other brief exposures for which neither was responsible.)
The difference in medical testimony was accepted by the members of the majority (separate judgements by French CJ, and by Gummow, Hayne and Crennan JJ; Heydon J dissenting) as establishing the main reason why Fairchild did not need to be considered (and similarly why Sienkiewicz v Greif
(UK) Ltd [2011] 2 WLR 523; [2011] 2 All
ER 857 was not relevant- see [81] where Gummow J et al point out that the UKSC in the latter case explicitly said it was accepting the state of the medical evidence accepted in the earlier decision.)
However, the "vibe" of the HC decision was certainly not in favour of adopting the Fairchild approach should it ever become relevant. See eg French CJ at [52] commenting that the result of that case was that "a new head of tortious liability
appears to have been
created". Presumably his Honour means (as I think was accepted by implication in Barker) that a cause of action based on increased risk is a different "animal" to a tort action based on proven harm. Given the general reluctance of the High Court to create new causes of tortious action, I don't really see much scope for Fairchild to be adopted in Australia in the future.
The dissent of Heydon J involved a detailed analysis of the expert testimony to show that it did not, in fact, lead to the conclusion that the trial judge had accepted. There is no doubt much more to be said on this issue.
There are, of course, references to articles by ODG participants Jane Stapleton and Richard Wright in the High Court's decision, as well as evidence of careful review of other current literature (eg the volume Perspectives on Causation edited by Richard Goldberg is cited.)
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