TERESA ELLIS AS EXECUTOR OF THE ESTATE OF PAUL STEVEN COTTON (DEC) & ORS RESPONDENTS
Amaca Pty Ltd v Ellis The State of South Australia v Ellis Millennium Inorganic Chemicals Ltd v Ellis [2010] HCA 5 3 March 2010 P13/2009, P14/2009 & P12/2009
ORDER
In each matter:
1. Appeal allowed with costs.
2.Within 14 days of the date of this judgment the appellant should file and serve any proposed amended notice of appeal.
3.Within 28 days of the date of this judgment either the parties should file agreed minutes of the consequential orders they seek to have this Court make, or, in default of agreement, each party should file, and serve on the opposite party, written submissions setting out the consequential orders which that party submits that this Court should make, together with any submissions which the party makes in support of, or in opposition to, any proposed amendment of the notice of appeal.
On appeal from the Supreme Court of Western Australia
Representation
G M Watson SC with J C Sheller for the appellant in P13/2009, the second respondent in P14/2009 and the third respondent in P12/2009 (instructed by Minter Ellison Lawyers)
M L Abbott QC with S J Doyle for the appellant in P14/2009 and the second respondent in P13/2009 and P12/2009 (instructed by Crown Solicitor for the State of South Australia)
D F Jackson QC with N J Owens for the appellant in P12/2009 and the third respondent in P13/2009 and P14/2009 (instructed by Lavan Legal)
B W Walker QC with J R C Gordon for the first respondent in each appeal (instructed by Slater & Gordon)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Amaca Pty Ltd v Ellis The State of South Australia v Ellis Millennium Inorganic Chemicals Ltd v Ellis
Negligence – Causation – Balance of probabilities – Deceased was a smoker – Deceased exposed to respirable asbestos fibres in course of employment – Deceased died of lung cancer – No scientific or medical examination can say whether deceased's lung cancer caused by inhalation of tobacco smoke, respirable asbestos fibres, both, or neither – Use of epidemiological evidence – Whether epidemiological evidence founded inference of causation – "Synergistic" effect of smoking and exposure to asbestos fibres – Whether proved that exposure to asbestos more probably than not caused or contributed to deceased developing lung cancer – Relevance of material contribution.
Words and phrases – "epidemiology", "material contribution", "more probable than…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Amaca Pty Ltd v Ellis [2010] HCA 5
Case
[2010] HCA 5
Decision Date
CaseChat Overview and Summary
This case involved appeals by Amaca Pty Ltd and others against decisions of the Court of Appeal concerning claims for damages for lung cancer allegedly caused by exposure to asbestos fibres during employment, compounded by the deceased's smoking habits. The High Court of Australia was required to determine whether the evidence presented established, on the balance of probabilities, that exposure to asbestos was a cause of the deceased's lung cancer.
The central legal issue was the application of the "more probable than not" standard of proof in cases of causation where scientific certainty is unattainable. The court had to consider whether epidemiological evidence, which demonstrated increased relative risks and potential synergistic effects between smoking and asbestos exposure, was sufficient to infer that asbestos exposure caused or materially contributed to the deceased's lung cancer in an individual case. The court noted that simply showing that asbestos exposure may have been a cause, or that a small percentage of lung cancer cases are attributable to asbestos, was insufficient without more to establish causation in a particular instance.
The High Court reasoned that while courts must resolve questions of causation despite scientific uncertainty, this requires more than merely identifying a potential cause or a statistical possibility. The court emphasised that the evidence must demonstrate that it was more probable than not that the exposure to asbestos was a cause of the deceased's lung cancer. The epidemiological evidence, while informative about general risks, did not, in the absence of further specific evidence linking the individual's condition to the exposure on the balance of probabilities, satisfy this threshold.
Consequently, the High Court allowed each appeal with costs. The court also provided directions for the parties to file proposed amended notices of appeal and to submit agreed minutes or written submissions regarding consequential orders to be made by the Court.
Orders
Orders of the court
In each matter:
1. Appeal allowed with costs.
2. Within 14 days of the date of this judgment the appellant should file and serve any proposed amended notice of appeal.
3. Within 28 days of the date of this judgment either the parties should file agreed minutes of the consequential orders they seek to have this Court make, or, in default of agreement, each party should file, and serve on the opposite party, written submissions setting out the consequential orders which that party submits that this Court should make, together with any submissions which the party makes in support of, or in opposition to, any proposed amendment of the notice of appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Although expressly relied on by the trial judge, little reference was made on the hearing of the appeals in this Court to the evidence of Professor Wan, Dr Kendall, Mr Kottek or Professor Fox. Attention was focused upon the epidemiological evidence of Professor Musk, Professor de Klerk, Dr Leigh and Professor Berry.The epidemiological evidence at trial Reduced to its essentials, the epidemiological evidence showed that many sufferers of lung cancer had smoked tobacco, a few had been exposed to asbestos; some of those who had been exposed to asbestos had also smoked; some had been neither smokers nor exposed to asbestos. The observations made about the relationship between exposure to the known carcinogens of smoking and asbestos and the development of lung cancer were used and interpreted by epidemiologists in a number of different ways. First, the data were used to provide measures of "relative risk". Relative risk was defined by Professor Berry (by reference to a Dictionary of Epidemiology[9]) as the "ratio of the risk of disease or death among the exposed to the risk among the unexposed". The measures of relative risk given in evidence described the size of the increase in the risk that a healthy person would contract lung cancer that was to be attributed to exposure to smoking, to asbestos, or to both smoking and asbestos. Second, the data were used to provide a measure of the extent to which the exposure to asbestos increased the chance that a smoker who was exposed to asbestos would contract lung cancer. Third, the data were interpreted as showing that the numbers of lung cancer sufferers who were smokers and had been exposed to asbestos were higher than would have been expected if the incidence of lung cancer in smokers was added to the incidence in those exposed to asbestos. This last observation was expressed as tobacco and asbestos having "a synergistic effect" and as asbestos exposure "multiplying" the risk of lung cancer due to smoking by a quantity greater than one.[9]Last (ed), A Dictionary of Epidemiology, 3rd ed (1995) at 145. These short descriptions of the ways in which the epidemiological data were used should not be understood as denying the complexity of the analyses that yielded the results described. Nor should the brevity of the descriptions be permitted to obscure the level of detail at which the data were analysed and expressed. To take but one example of that detail, account was taken in the relevant analyses not only of the extent to which Mr Cotton had smoked but also of the levels of exposure to respirable asbestos fibres that were to be expected in each of his particular employments. There were, of course, differences in the ways in which the several witnesses expressed their opinions. There were differences between them about the particular values that should be given for the various measures of risk and probability about which they spoke. But neither the differences in expression, nor the differences in values stated, should obscure the very substantial measure of agreement between the witnesses on matters which bore upon the question of causation.
Decision
Reasons for decision
FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
(dissent)
The answer to the question can be expressed in several different ways. All depend upon the basic and unpalatable fact that no scientific or medical examination can now say, with certainty, what caused Mr Cotton's cancer or lung cancer in any other particular case. As explained at the outset of these reasons, despite this uncertainty, the courts must, and do, "reduce to legal certainty [a question] to which no other conclusive answer can be given"[33]. The courts do that by asking whether it is more probable than not that X was a cause of Y. Saying only that exposure to asbestos may have been a cause of Mr Cotton's cancer is not a sufficient basis for attributing legal responsibility. Observing that a small percentage of cases of cancer were probably caused by exposure to asbestos does not identify whether an individual is one of that group. And given the small size of the percentage, the observation does not, without more, support the drawing of an inference in a particular case. The paradox, if there be one, arises from the limits of knowledge about what causes cancer.[33]Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 340.Conclusion and orders For these reasons each appeal should be allowed with costs. Each appellant's notice of appeal in this Court seeks orders setting aside only the orders of the Court of Appeal made on 26 September 2008. By its orders of 26 September 2008 the Court of Appeal dismissed the appeals to that Court by the State of South Australia and Millennium, but stood over for further consideration the making of orders dealing with Amaca's appeal and the making of orders dealing with the costs of all three appeals to the Court of Appeal. Those matters were dealt with by orders made on 29 January 2009. In addition, each appellant's notice of appeal in this Court seeks the setting aside of orders of Heenan J made on 8 December 2006 but no other order made at first instance. The orders of 8 December 2006 provided, in effect, for judgment for the plaintiff but reserved the costs of the action. The papers made available to this Court do not show whether any later order was made at first instance dealing with those costs. If an appellant seeks consequential orders which deal with orders in the courts below, other than the orders of the Court of Appeal made on 26 September 2008 and the orders made at first instance on 8 December 2006, that appellant will require leave to amend its notice of appeal. Each appellant should now have an opportunity to consider whether it wishes to seek leave to amend. And in any event, all of the parties to the appeals should now have an opportunity to consider what further orders this Court should make beyond allowing each appeal with costs. There should be orders in each appeal in the following terms:1. Appeal allowed with costs.2.Within 14 days of the date of this judgment the appellant should file and serve any proposed amended notice of appeal.3.Within 28 days of the date of this judgment either the parties should file agreed minutes of the consequential orders they seek to have this Court make, or, in default of agreement, each party should file, and serve on the opposite party, written submissions setting out the consequential orders which that party submits that this Court should make, together with any submissions which the party makes in support of, or in opposition to, any proposed amendment of the notice of appeal.