The issues arise in the context of litigation against former James Hardie entities which sold automotive brake linings for many years, among other products. Some former Hardie entities are now part of the Asbestos Injuries Compensation Fund - the website is here, and some corporate background is here.
High Court of Australia1
In Brief
The High Court found that there was sufficient evidence to justify a finding by the Dust Diseases Tribunal of NSW that a motor mechanic's exposure to asbestos brake linings caused Mr Booth's mesothelioma notwithstanding conflicting epidemiological studies.
Background
At the age of 71 years, John William Booth (plaintiff) developed the fatal condition of mesothelioma arising out of his exposure to asbestos. Throughout the course of his life, the plaintiff was exposed to asbestos in both a domestic and occupational capacity. His occupational exposure to asbestos occurred between 1953 and 1983 whilst working as a motor mechanic and whilst handling brake linings which contained asbestos.
The plaintiff commenced proceedings in the Dust Diseases Tribunal of New South Wales against the two manufacturers/suppliers of the asbestos brake linings to which he was exposed; Amaba Pty Limited and Amaca Pty Limited (defendants).
On 10 May 2010, Curtis J delivered judgment in favour of the plaintiff in the amount of $362,640 plus costs.
The defendants filed proceedings in the Court of Appeal seeking to overturn findings made by Curtis J in respect to liability and damages but were unsuccessful. The High Court then granted the defendants special leave to appeal on limited grounds.
Court of Appeal Decision2
The 17 separate grounds of appeal are summarised as follows:
- Whether expert evidence called by the plaintiff should have been admitted;
- Whether general and specific causation was established;
- Whether the injury to the plaintiff was foreseeable;
- Whether the defendants breached their duty of care to the plaintiff; and
- Whether a causal link was established between the breach of duty of care and the injury.
Basten JA, with whom Beazley JA and Giles JA both agreed, delivered a comprehensive judgment dismissing the appeal on all grounds.
The strongest objection taken by the defendants was that the trial judge failed to apply the correct legal test concerning the question of causation. The defendants argued that Curtis J failed to apply the "but for" test on causation and therefore misapplied the test referred to in Bonnington Castings Ltd v Wardlaw3 and Amaca v Ellis4 that is, "what is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material."5
Basten JA stated that the authorities did not support the proposition that Curtis J misapplied the general law test of causation.
Basten JA found that although the evidence in 1953 may not have demonstrated a significant risk to persons exposed to low levels of asbestos dust on rare occasions, such as in the course of home renovations, the risk of exposure in an industrial setting with prolonged exposure was, by 1953, well supported by the evidence.
In considering whether the risk posed by exposure to asbestos dust was foreseeable, Basten JA agreed with the trial judge who noted the need to identify a class of persons who might be exposed to asbestos dust in the course of industrial operations. That approach had previously been accepted in McPherson's Ltd v Eaton6 and Caltex Refineries (Qld) Pty Ltd v Stavar.7
The appeal was dismissed on all grounds and the defendants were ordered to pay the plaintiff's costs.
High Court of Australia Decision
On 10 June 2011 the defendants were granted special leave to appeal from the decision of the Court of Appeal. However, leave was limited to the question of the adequacy of the expert evidence and evidence as a whole, to support the primary Judge's finding that Mr Booth's exposure to brake lining asbestos manufactured by the defendants had caused his mesothelioma.
French CJ delivered the leading judgment whilst Gummow, Hayne and Crennan JJ delivered a joint judgment, both of which dismissed the appeals with costs. Heydon J delivered a dissenting judgment involving a comprehensive analysis of the expert epidemiological evidence.
The defendants argued that the evidence of the medical witnesses focused on "risk" rather than "cause" and that the primary Judge based his findings on causation by reference to an increase in risk. The defendants contended that the medical evidence did not support such a finding on the basis of the Court's decision in Amaca Pty Ltd v Ellis.8
French CJ distinguished the case of Ellis because in that case, the plaintiff failed to prove that it was more probable than not that exposure to asbestos had made a material contribution to his lung cancer whereas in the present case there was no evidence in relation to any other carcinogen capable of causing mesothelioma.
His Honour noted that Professor Henderson, qualified by the plaintiff, made reference to the "Bradford Hill criteria" being a guide to the type of considerations that can lead to an inference of causal nexus.
His Honour asserted that epidemiological studies were not the determinative factor in circumstances where an inference could be drawn that the plaintiff's exposure to asbestos caused the development of his mesothelioma.
His Honour concluded that the primary Judge's interpretation of the expert evidence and his conclusions from it, were open as a matter of law.
In the joint judgment of Gummow, Hayne and Crennan JJ, it was noted that the plaintiff did not challenge the epidemiological evidence tendered by the defendants. Rather, the plaintiff submitted that the fact that the epidemiological evidence was unable to demonstrate a significant increase in risk in motor mechanics (brake-lining exposure) did not prevent the primary judge from making a finding on causation in favour of the plaintiff.
Their Honours held that it was open to the primary Judge to find that causation had been proved on the balance of the evidence notwithstanding the epidemiological evidence specific to automotive mechanics presented by the defendants.
In his dissenting judgment, Heydon J provided a detailed analysis of the evidence before the primary Court and concluded that it was erroneous for the primary Judge to make a finding on causation in light of the evidence. Heydon J held that the plaintiff's expert evidence established that each exposure increased the risk of mesothelioma; it did not follow that each exposure caused the mesothelioma.9 In effect Heydon J held that merely increasing the risk of contracting mesothelioma (the Fairchild10 exception) cannot be equated with causing or materially contributing to the injury.
His Honour also noted that the primary Judge ought to have properly considered the "but for" test in circumstances where there was evidence before him to suggest that the plaintiff would have failed such a test.
Implications
The decision has affirmed the proposition that all exposure to asbestos may be regarded as being capable of causing mesothelioma, creating a greater challenge for defendants in successfully disputing liability on the grounds of causation in low-dose exposure matters.
As observed in the Curwoods' Case Note on the Court of Appeal decision, the Courts have found that there was sufficient evidence available by 1953 to demonstrate that there was a risk of serious injury arising from exposure to asbestos in an industrial setting (including motor mechanics handling asbestos brake pads) over prolonged periods.
The Court distinguished the decision in Ellis11 because in that case the evidence (including the epidemiological evidence) clearly indicated that the plaintiff's lung cancer was caused by inhalation of tobacco smoke as opposed to exposure to asbestos.
The High Court has held in effect that the new head of tortious liability created by Fairchild12 and affirmed in Sienkiewicz13 does not apply in Australian tort law.
Footnotes
1 French CJ, Gummow, Hayne, Heydon and Crennan JJ
2 See Curwoods Case note of 22 December 2010
3 [1956] AC 613
4 [2010] HCA 5
5 Bonnington Castings v Wardlaw [1956] AC 613 at 621
6 [2005] NSWCA 435 also, see Curwoods Case note of 16 December 2005
7 [2009] NSWCA 258 also, see Curwoods Case note of 11 September 2009
8 Amaca Pty Ltd v Ellis [2010] HCA 5
9 See paragraph 139
10 [2002] UKHL 22
11 [2010] HCA 5"
Ever wonder why asbestos plaintiff's lawyers presently are spending so much time and energy trying to limit the time allowed for depositions of asbestos plaintiffs ? Obviously plaintiff's lawyers on contingent fees prefer to spend less time in deposition than do defense lawyers being paid by the hour. But, some say there is more to it than just the time..jpg)
money selling to 
