Australia: Each period of exposure to asbestos held to have made a contribution towards the contraction of lung cancer

Judgment date: 4 April 2012

Allianz Australia Ltd v Sim; WorkCover Authority (NSW) v Sim: Wallaby Grip (BAE) Pty Ltd (In Liq) v Sim [2012] NSWCA 68

NSW Court of Appeal¹

In Brief

• The Court of Appeal held that in circumstances where the contribution of the negligent acts of 2 or more defendants were sufficient to cause damage, each of those defendants should be held liable in respect of an indivisible injury caused by exposure to asbestos.
• The "but for" test is not the exclusive test of causation in negligence.

Background

Proceedings were commenced in the Dust Diseases Tribunal of New South Wales on behalf of the Estate of the deceased, Mr Sim, seeking damages in respect of the conditions of asbestosis and subsequent lung cancer alleged to have arisen from the deceased's occupational exposure to asbestos during 4 separate periods of employment between 1964 and 1979.

Each of the defendants named at first instance were sued in respect of their common law liabilities owed to the deceased for the 4 separate periods of employment in which he was exposed to asbestos.

The Estate principally relied upon the expert evidence of Professor Douglas Henderson for the basis of the allegation that damage had been occasioned by the deceased's exposure during each period of employment.

Dust Diseases Tribunal Decision

The primary judge, Curtis J, found that the deceased was exposed to asbestos during each of the 4 separate periods of employment and that at no stage during those periods of employment was he warned of the health risks associated with exposure to and inhalation of asbestos fibres. Curtis J found that at no stage was the deceased provided with adequate respiratory protection.

Professor Henderson's expert opinion was that exposure during each and every period of employment had made a significant and substantial causal contribution to the development of the deceased's asbestosis and lung cancer.

Curtis J accepted the evidence of Professor Henderson, noting that none of the defendants called any expert evidence addressing the question of causation. Curtis J found that each of the defendants were severally liable in respect of the deceased's asbestosis and were liable for damages accordingly.

Furthermore, Curtis J found that the deceased's exposure to asbestos fibres during each period of employment had materially contributed to the cause of the deceased's lung cancer.

The Estate was awarded approximately $105,000 in damages in respect of the deceased's asbestosis. In respect of the deceased's asbestos-induced lung cancer, the Estate was awarded approximately $318,000 in damages.

Court of Appeal Decision

The leading judgment was delivered by Allsop P, with a separate detailed judgment delivered by Basten JA. Meagher JA agreed with the reasons of both Allsop P and Basten JA.

The principal ground of appeal was whether there was sufficient evidence to support the primary judge's finding on causation in respect of the deceased's lung cancer.

Central to the success of the argument was the proper approach to the theory of causation and, in particular, the meaning in the Australian common law of "material contribution" in such expressions of principle as in March v Stramare (E & M H) Pty Ltd ².

The argument which the Court of Appeal rejected was that proof of material contribution in respect of causation must be established by reference to a "but for" test.

The Court of Appeal made reference to the recent decisions of Amaca v Booth ³ (the Booth case) and Strong v Woolworths ⁴ as the basis for their rejection that the "but for" test is an exclusive requirement of an analysis of causation.

In particular, the Court of Appeal referred to the remarks of Mason CJ about the "but for" test in March v Stramare ⁵:

The issues of causation in the Estate's claim were distinguished from the issues in the decision of Amaca v Ellis (the Ellis case). In the Ellis case, there was insufficient evidence to demonstrate that the deceased's exposure to asbestos, on the balance of probabilities, had caused the cancer. In that case the expert evidence clearly established that smoking was a more likely cause of the plaintiff's lung cancer than exposure to asbestos.

Importantly, the question of material contribution also did not arise in the Ellis case.

The appeal was unanimously dismissed with costs.

Implications

The Court of Appeal's decision has affirmed the authorities laid down on "material contribution" and, more importantly, the fact that a "but for" analysis is not a pre-condition to a finding of causation in tort. The doctrine of material contribution applied by the House of Lords in Bonnington Castings Ltd v Wardlaw ⁶ was specifically endorsed. ⁷

The Court of Appeal also confirmed the approach of the High Court to causation in the Booth case to the effect that causation in tort is not established merely because the alleged tortious act or omission increased the risk of injury. It remains the law in Australia (unlike the exception in the Fairchild case ⁸ ) that it is not sufficient to prove that a defendant's conduct increased the risk of injury; it must have caused or materially contributed to the injury.

At this stage it is not clear whether a special leave application to the High Court will be filed.

Footnotes

¹ Allsop P, Basten JA and Meagher JA
² [1991] HCA 12
³ [2011] HCA 53
⁴ [2012] HCA 12
⁵ [1991] HCA 12
⁶ [1956] AC 613
⁷ at p140
⁸ Fairchild, Barker v Corus UK Ltd [2006] UKHL 20

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