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  • Writer's pictureKirk Hartley

Australian Appellate Court Affirms Verdict Involving Automotive Brake Linings as a Cause of Mesothel

It’s back to Australia. There, an important new appellate court opinion affirms a verdict for a brake mechanic who won a trial court judgment that his mesothelioma was caused by inhalation of chrysotile asbestos fibers from automotive brake linings. A popular press article is here regarding the plaintiff, John Booth. The appellate opinion is here. The trial court opinion is here.

The appellate court opinion is noteworthy in multiple ways, and not all are covered here. Of note to me, the US Supreme Court’s Daubert opinion was acknowledged as interesting, but was not followed. Second, the Court rejected defendants demand for epidemiological proof. Third, it reached the obvious – but not always stated – conclusion that tort damages may be awarded when scientists can explain some – but not all parts – of exactly how a disease is caused.

Key passages are set out below; the Australian system of numbering paragraphs makes it easy to find the quoted sections.

62 The objection must ultimately be resolved by reference to the contention that Professor Henderson failed to engage with the epidemiological evidence said to demonstrate that there was no causal link between exposure to asbestos in the course of undertaking brake repairs and mesothelioma. That proposition, however, fails at two levels. First, it fails because it assumed that epidemiological evidence is both relevant and dispositive of, or at least superior to, other evidence of causation. Secondly, it fails because Professor Henderson did not disregard the epidemiology.

63 The role of epidemiology in causation inquiries was explained by Spigelman CJ in Seltsam Pty Ltd v McGuiness at [93] in the following terms: “With respect to many diseases, medical science is able to give clear and direct evidence of a causal relationship between a particular act or omission and a specific injury or disease. There are, however, fields of inquiry where medical science is not able to give evidence of that character. There are cases in which medical science cannot identify the biological or pathological mechanisms by which disease develops. In some cases medical science cannot determine the existence of a causal relationship. Such a state of affairs is not necessarily determinative of the existence or non-existence of a causal relationship for purposes of attributing legal responsibility. Epidemiological evidence may be able to fill the gap. It is of particular potential utility in the field of what is often referred to as ‘toxic torts’, especially in case of diseases with long latency periods.”

64 Professor Henderson’s evidence in terms supported a causal relationship; accordingly, the epidemiological evidence was not essential or dispositive. (emphasis added).

The opinion also includes a notable, brief discussion of whether it matters that science cannot yet explain every part of the biological process that results in the cancer. The Court emphatically said "no," and explained the holding as follows:

116 It is convenient to deal first with the challenge to the “biological process” evidence. The appellants submitted that such evidence was “incapable” of supporting a finding in favour of the respondent, for three reasons. First, it was said that the biological processes remain “incompletely understood”. That assessment of scientific understanding may be accepted; but it takes the appellants nowhere. The civil standard of proof, on the balance of probabilities, permits a yawning gap between complete understanding and sufficient understanding. There may be an even greater gap between that which is “capable” of supporting a finding on the balance of probabilities and that which the appellants would accept “does” support such a finding. The submission misconceives the nature of the proceedings. (emphasis added).

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