From: Neil Foster <Neil.Foster@newcastle.edu.au>
To: David Cheifetz <david.cheifetz@rogers.com>; "obligations@uwo.ca" <obligations@uwo.ca> 
Sent: Saturday, December 17, 2011 3:26:44 PM
Subject: Re: ODG: Amaca v Booth- HCA on causation in asbestos cases

Dear David;
Let me tell you how this appears from the perspective of one who only dips into causation issues occasionally. The following is no doubt simplistic but it is the best I can do when my brain is starting to shut down for Christmas.
French CJ and the rest of the court want to say that someone can be responsible for harm only when it has been proven on the balance of probabilities that they were a cause of the harm. (They do not want to accept the Fairchild, "harm can established by showing increase in risk", analysis.) The orthodox causation test requires a threshold question: "but for" the action of X, would the harm have occurred? However, there are some theoretical and very rare cases (where two independently acting events would each have caused the harm) where we want to say that each actor was a "cause" even though the but for test does not work. For these cases we will accept the NESS analysis as establishing cause. The fact that as far as I am aware real life cases of independent simultaneous cases are virtually non-existent means that adopting the NESS analysis is a helpful theoretical tool but does not in practice detract from continuing to use the "but for" test as the practical "gateway" to a finding of causation.
I have no doubt succeeded in trivialising or mis-stating some important features of the analysis, but I think that is how most lawyers in Australia would read the judgement.
Regards
Neil



Neil Foster
Senior Lecturer
Newcastle Law School
Faculty of Business & Law
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

http://works.bepress.com/neil_foster/




>>> David Cheifetz <david.cheifetz@rogers.com> 12/17/11 2:28 PM >>> 
Neil,

It's puzzling to me that French CJ (or any of the rest of the panel)  missed the inconsistency in paras. 47-48 of French CJ's reasons. Or at least the doctrinal problems even if one is not prepared to describe them as an inconsistency.

Para. 47 says that the but-for test is still the threshold for factual causation in Australia; states that "that threshold must  also be surmounted in the case of concurrent or successive tortious acts" (followed by a "caused or materially contributed to" cant  seeming equated with but-for in a quotation from from March). Then, in the last sentence of para. 48,  French CJ seems to acknowledge NESS could be valid. I admit to missing the connection between the penultimate and last sentence, if the penultimate isn't a concession that necessity isn't required where the question is whether this X caused that Y.

    1. The  distinction between a statistical correlation and factual causation precedes any  consideration of the distinction between factual causation and legal causation  which was discussed in March v E & M H Stramare Pty Ltd[57]. Factual causation  which can be established by the application of the "but for" test is "the  threshold test for determining whether a particular act or omission qualifies as  a cause of the damage sustained."[58] That threshold must also be surmounted in the  case of concurrent or successive tortious acts[59]:
"it is for the plaintiff to establish that his or her injuries are  'caused or materially contributed to' by the defendant's wrongful conduct ...  Generally speaking, that causal connexion is established if it appears that the  plaintiff would not have sustained his or her injuries had the defendant not  been negligent".

    2. The  threshold requirement still holds good in Australia[60]. As appears from the 10th edition of Fleming's The Law of Torts[61]:
"The first inquiry involves the factual question whether the  relation between the defendant's breach of duty and the plaintiff's injury is  one of cause and effect in accordance with objective notions of physical  sequence. If such a causal relation does not exist, the plaintiff has no  actionable claim in negligence. To impose liability for loss to which the  defendant's conduct has not contributed is incompatible with the principle of  individual responsibility upon which the law of torts is based." (footnotes  omitted)
        Factual causation does not requirethat the propounded cause  be one link in a chain of causative factors or events. It may be, as some  commentators have suggested, a "necessary element of a sufficient set" of  causes[62].
> 
Note [62] is Richard Wright's "NESS Account". It seems that a bit puzzling (at least to me) that somebody adequately informed would cite "NESS Account" as an explanation of factual causation in the same breath as a claim that the but-for test is the threshold for findings of singular causation in duplicative causation cases.

Cheers,

David



________________________________
From: Neil Foster <Neil.Foster@newcastle.edu.au>
To: obligations@uwo.ca
Sent: Tuesday, December 13, 2011 11:04:36 PM
Subject: ODG: Amaca v Booth- HCA on causation in asbestos cases


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
http://www.newcastle.edu.au/staff/profile/neil.foster.html
http://works.bepress.com/neil_foster/