Amaca Pty Ltd v Ellis & Ors
[2009] HCATrans 77
[2009] HCATrans 077
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P33 of 2008
B e t w e e n -
AMACA PTY LTD
Applicant
and
TERESA ELLIS AS EXECUTOR OF THE ESTATE OF PAUL STEVEN COTTON (DEC)
First Respondent
THE STATE OF SOUTH AUSTRALIA
Second Respondent
MILLENNIUM INORGANIC CHEMICALS LTD
Third Respondent
Office of the Registry
Perth No P34 of 2008
B e t w e e n -
THE STATE OF SOUTH AUSTRALIA
Applicant
and
TERESA ELLIS AS EXECUTOR OF THE ESTATE OF PAUL STEVEN COTTON (DEC)
First Respondent
AMACA PTY LTD
Second Respondent
MILLENNIUM INORGANIC CHEMICALS LTD
Third Respondent
Office of the Registry
Perth No P35 of 2008
B e t w e e n -
MILLENNIUM INORGANIC CHEMICALS LTD
Applicant
and
TERESA ELLIS AS EXECUTOR OF THE ESTATE OF PAUL STEVEN COTTON (DEC)
First Respondent
THE STATE OF SOUTH AUSTRALIA
Second Respondent
AMACA PTY LTD
Third Respondent
Applications for special leave to appeal
CRENNAN J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 1 MAY 2009, AT 11.32 AM
Copyright in the High Court of Australia
__________________
MR D.F. JACKSON, QC: Your Honours, may I mention our appearance first? I appear with my learned friend, MR N.J. OWENS, for the applicant, Millennium, in P35 and for the third respondent in the other two matters. (instructed by Lavan Legal)
MR G.M. WATSON, SC: May it please your Honours, I appear for Amaca with MR J.C. SHELLER, and for the State of South Australia with MS C.J. THATCHER. (instructed by Minter Ellison Lawyers)
MR S.G. FINCH, SC: If it please the Court, in each of the applications I appear with my learned, MR J.R.C GORDON, for the first respondent. (instructed by Slater & Gordon)
CRENNAN J: Yes. We would be assisted by hearing from you first, Mr Finch.
MR FINCH: Thank you, your Honours. The point of principle said by each of the three applicants to arise is effectively the same. One goes most quickly to it – if your Honours would be good enough to turn to application book 2 at page 542 which is Amaca’s appeal summary. I acknowledge that Millennium’s question is phrased slightly differently but it is the same question. Your Honours see the question that is suggested is:
does a claimant need to prove more than an act or omission increased the risk of an injury occurring? Can proof of an increase in risk be enough, even though the increase of risk did not cause the injury?
The point did not arise below. It did not arise at first instance and it should not arise in this Court. Neither the Court of Appeal nor the subset, being the majority, nor the dissenting Chief Justice nor the trial judge made any such finding, nor were they asked to.
CRENNAN J: But is that not simply a summary of the findings made in relation to causation?
MR FINCH: Yes. One can cut right to the chase in this case, perhaps, and say what would the Court do if a grant of special leave were allowed. It would presumably adhere to the orthodoxy that this Court has adhered to for at least 17 years, now, since March. It presumably would not restate the questions in any way differently to its being restated in a number of cases, including by Justice Kiefel most recently in Royal. The question which would then arise is having restated those tests in precisely the same terms as the trial judge stated, in precisely the same terms as the Court of Appeal stated them, what comes next, that is, their invitation, which we say this Court would decline, to test for itself whether the evidence did move from the establishment of an increased risk to that risk coming home or the risk, I think, eventuating, in Justice McHugh’s terms.
CRENNAN J: Yes, eventuating.
MR FINCH: That is an invitation which, as I say, this Court should decline. If the Court remitted the question to the court below it would say, presumably, we answered that question using the same test. The Chief Judge dissented because his view of the evidence struck his eye differently to the way it struck the eye of the trial judge and the majority by saying, “I don’t think the evidence went past a mere increase of risk. I do not think the clinical and medical evidence passed the boundary to the point where the risk eventuated”. The trial judge differed and the majority differed on questions of fact involving, most particularly, an analysis of what it was that the medical evidence was as opposed to the epidemiological evidence and the clinical persons who examined Mr Cotton before he died.
CRENNAN J: But is that not the very situation that gave rise to what was called “the evidential gap”?
MR FINCH: It is not exactly clear what was being talked of when one sees the majority speaking of “the evidential gap”. I think, and I am diverting a little bit here from strict chronology, your Honours can answer that question if your Honours turn to the previous decision involving that majority in Amaca v Hannell. Without being disrespectful in any way to the majority in this case your Honours may have noticed that many of their remarks were either simply cut and pasted from their previous decision or were paraphrases of things just like that. If one looks at, in particular, page – I am sorry, your Honours have that decision, I think, in the bundle from the applicants at tab 2.
If your Honours turn towards the back of the decision at page 199, your Honours see there that the majority – the same majority was there talking about similar matters, starting at paragraph 417 and they are there, towards the end of that paragraph, dealing with what it was that was controversial, if anything, about the “application of the Bennett test”.
In the next paragraph they go on to talk in similar terms about what was controversial. What appears to be the subject of their Honours discussion there seems to have translated itself into the discussion of the majority at – if I can just turn it up – well, I will not turn that up, I am not addressing your Honour’s question quickly enough. There is two sections, which is why I delayed. There is a section at 474 of the application book, paragraph 319, and another section to similar effect, although not using the words “evidential gap” at 479. I think what your Honour is asking me really turns on what their Honour said in 319 and this is why I took your Honours to the previous decision. Their Honours commence:
Putting to one side the controversial proposition of whether Australian law permits a plaintiff to jump an evidential gap –
It would appear that what their Honours are talking about in some shorthand there is the controversy referred to in that page of Hannell that I have just taken your Honours to and to the extent that the court would need to be satisfied about that, seems to be some congruity between the two sets of expressions. What their Honours say is here:
the appellants’ contentions are only arguable if tobacco smoking and the separate exposures to asbestos are not cumulative . . . or if the evidence did not permit a finding of cumulative causes.
What they are saying is the evidential gap simply does not arise in this case. As a matter of fact, assuming that be a controversial question, and let us assume for the sake of argument that it is, on the facts it does not arise because there was a finding of cumulative cause and that the evidence, particularly the medical evidence, supported that. In those circumstances, their Honours did not and did not need to address this so‑called evidential gap.
One assumes that it might be shorthand for a Fairchild‑type approach where one has, for instance, in that case three possible causes. It cannot be said that any one of the causes caused the injury in question, and in that case they say the law has developed in a particular way. Now, as the trial judge found, and the trial judge as your Honours might recall did address Fairchild, the trial judge said Australian law does not allow recourse to a Fairchild approach and he did not apply it. He said, “I do not need to apply it, I apply the orthodoxy”, referring to Chappel v Hart and other decisions that I will not recite.
CRENNAN J: What happened in the Court of Appeal in relation to Fairchild and Barker?
MR FINCH: They did not even mention it, they did not need to, and the reason was, uncontroversially – if I go back to the trial judge’s decision. If your Honours turn to application book 1 at 296, the discussion started back at, most relevantly, 291 at paragraph 662 where his Honour introduces the Fairchild Case. Relevantly for today’s purposes his Honour summarises the important integers of Fairchild. Over the page at 292 your Honours see at point B:
Accordingly, one of the three defendants must have caused the fatal mesothelioma but it was not possible to show that one, rather than either of the other employers was responsible.
That is, of course, this was not a cumulative case, nor more importantly, an accelerative case –
To avoid injustice the House of Lords modified the rules of causation –
et cetera, in terms that your Honours read before –
to the effect that proof of material contribution to the elevation of the known risk, in cases where the victim contracted the actual disease which the exposure threatened, would be treated as causative.
His Honour then carefully went through what that meant and how it had been considered. Then, importantly, at page 296 his Honour the trial judge at paragraph 672 said:
This is not to suggest that the Fairchild principle, even if extended to multi‑agent carcinogens, would apply in Australia to a case such as this.
Of course “this” being a case where there was cumulative injury which was multiplicative. Then his Honour, quite rightly, retreats to orthodoxy in the rest of that paragraph in this Court setting out what might be called, without disrespect, the usual excerpts from the usual cases. Then says in paragraph 674 Fairchild was discussed but distinguished in Rufo, halfway through the paragraph, “and it was said not to represent the law in Australia by Barker J”. Then paragraph 675:
On this basis, therefore –
That is the basis that there is orthodoxy in Australia that Fairchild is not part of the law Australia –
the crucial test on the issue of causation in the present case is whether or not the plaintiff has demonstrated, on the probabilities, that an inference of causation should be drawn that the asbestos exposure, in combination with the history of chronic smoking, materially contributed to Mr Cotton’s lung cancer.
Not simply elevated the risk. Indeed, one can tell that there was no controversy about this. If your Honours would be good enough to go back to volume 2 of the application book and look at the starting point to test it at its extremes, the discussion by the dissenting Chief Justice below, and if your Honours would be good enough to look at pages 418 and 419 to start with in application book 2. This is part of, as I say, the Chief Justice’s dissent below. Paragraph 163 at about point C:
The legal principles governing such a claim are not controversial.
Further down the page below point E:
The trial judge expressly acknowledged that principle by referring to this passage from Bendix –
et cetera. I am saving time, your Honours, if I can do so, in effect, by simply passing over reading passages which your Honours are more than familiar with. Then turning over the page to 419. This is the gravamen of what the Chief Justice said about the trial judge:
Despite having correctly enunciated the principles –
That is, there was no debate that he said the test was what it was and got it right –
it is clear from the reasons of the trial judge as a whole, that he did not undertake that process.
That is, when you go through the reasons of the Chief Justice, which I will not do for this purpose, they have been done in our written argument, that he disagreed with what the trial judge found was the weight and utility of all of the evidence, the epidemiological evidence on the first hand ‑ ‑ ‑
KIEFEL J: This is on the point of material contribution?
MR FINCH: Yes. All the trial judge did, as the majority found, was, firstly, yes, he did take into account epidemiological evidence, as one must because it is part of the background which one takes into account in assessing whether or not there is a possible cause. He did not say because it is very persuasive it was therefore the probable cause. Indeed he, with disarming frankness, acknowledged that it was not all that persuasive in that connection. It was simply no more than an elevation of risk, which was then to be considered as the starting point of what he analysed more closely as the medical and clinical evidence. We have set out in our written argument about the details of where that was done and how it was done.
That question, that is, did the medical and clinical evidence push the case past risk into probable cause, is a question of fact about which reasonable minds can and did differ. Your Honours could do no more, with great respect, than say, well, yes, for the fourth time we will say that that is the test, that is the orthodox test, and the question is whether or not we think the test was satisfied. That would involve your Honours in saying, well, look at Dr Kendall’s evidence, look at Professor Fox’s evidence, look at Dr Leigh’s evidence, do we think that sufficiently moved from risk to general population, to particular instance? The trial judge found that it was sufficient to move to particular incidents of this disease in Mr Cotton.
Can I give one further example from the dissenting judgment below at 446, where his Honour the Chief Justice at point B and following returned to the issue of causation, recited that they had recently reviewed in Western Australia and says:
Put shortly, the majority view –
That is, in that case:
adopts and applies –
and again, if I can call it shorthand, the orthodoxy in Bennett and Chappel v Hart. In paragraph 223:
So, if the evidence establishes that a breach of duty by any of the defendants resulted in an increased risk . . . and that risk eventuated –
Neither he nor any other judge in this case forgot to add the section that, with respect, Justice Kiefel emphasised in Royal, that you must not forget that that extra phrase occurs, and neither did they.
CRENNAN J: I think what is put against you is that a majority in the Court of Appeal held that the orthodox position, which I know you have gone to and pointed out various passages in relation to that, subject to some sort of exception applying to cases involving interdependent or cumulative causes ‑ ‑ ‑
MR FINCH: Nowhere do they say that. That is the applicant’s restatement of what the Court of Appeal say.
CRENNAN J: They did, said and did.
MR FINCH: The applicants need to restate the words of the Court of Appeal majority before they can come to that view and your Honours will look in vain for any paragraph where they say that. Now, I appreciate, of course, one can say “Yes, lip service was paid”, but that is not what they did. The difficulty with that submission is that what they did was adopt the finding of the trial judge as to what the weight of evidence was, so that (a) they recited the correct test, (b) they adopted the findings of the trial judge, who also recited the correct test and who nominated the witnesses upon whom he relied to move from elevated risk to material contribution.
If one looks, for instance, at the words of the majority in this context, and I appreciate to some extent I am not directly addressing any position that may be in controversy because it may be accepted that lip service was paid to the principle, but what they did was different. That is not actually the grounds of appeal. The grounds of appeal say that they got the test wrong.
CRENNAN J: The grounds of appeal are a short point about the test.
MR FINCH: Yes, and that does not arise. As I postulated at the outset, what would your Honours do – state the test again, presumably in the same terms?
CRENNAN J: Consider the point as framed by them in the way I just did to you before.
MR FINCH: The difficulty with that is, of course ‑ ‑ ‑
CRENNAN J: And in the context that Fairchild and Barker indicate that these issues – I know the facts were different, but these types of issues raise a question of general importance.
MR FINCH: They do raise a question of general importance but the question of general importance is perhaps most summarily described as multiple cause tort.
CRENNAN J: Yes, interdependent or cumulative causes.
MR FINCH: Interdependent or cumulative, or perhaps one needs to say, “What does the universe of authorities say about successive and/or cumulative and/or multiplicative?”
CRENNAN J: In a sense, given what I have just said, it would be possible to say it is appropriate for this Court to look at the question.
MR FINCH: The problem for that is this is not the correct vehicle.
CRENNAN J: You are saying this is not a suitable vehicle?
MR FINCH: Not a suitable vehicle, but there is a degree of schizophrenia, if I can use the expression, in the applicant’s position because they are essentially conducting an appeal against Amaca v Hannell in which special leave was refused. The issues do not arise here, and I will come back to that very briefly in a moment, because in this case, as a finding of fact, the injuries were cumulative, the causes were cumulative and multiplicative, and in those circumstances there is no reason at all to revisit the discussions of that sort of issue of Justice Gaudron in particular in Henville and similar remarks by Justice McHugh and Justice Hayne in the same case. True it is that that case was strictly about a section 52 application, but precisely the same conceptual matters were being discussed – that is, what do we do when there is multiple cause, when for instance none of them are sufficient but together they are?
In those circumstances, if one turns out – and I am perhaps diverting a little early to authority – but if your Honours turn up our bundle of cases, if your Honours have got them there, that is the one with the 13, I think, tags in it. I am not going to, because I will not have enough time, spend any time on going back over Bonnington but, as your Honours have seen, we have said, Bonnington, which appears at tab 1, has been applied many times in this Court. There is no controversy about that yet. I will not, I think, go over that. But if I can turn perhaps more relevantly to tab 4 where Henville appears and again if your Honours will forgive me for the discourtesy in rushing straight to the relevant bits. If your Honours would turn to page 480 of the report, paragraphs 59 and 60 of Justice Gaudron’s decision:
There is nothing novel in the idea that, on occasions, loss or injury is the result of two or more events, neither of which is sufficient, of itself, to bring about that result.
Assume against ourselves for the moment that the asbestos is thought in this case, even though there were two exposures, to be not sufficient of itself. It falls squarely within what her Honour is talking about –
The events in question may be sequential or concurrent.
So her Honour is encompassing the universe of what your Honour and I were just discussing –
March v Stramare (E & MH) Pty Ltd was a case involving an injury which resulted from the conjunction of two separate acts, the injury in question having resulted from the plaintiff . . .
For the purpose of the law of negligence, where two or more events combine to bring about the result in question, the issue of causation is resolved on the basis that an act is legally causative if it materially contributes . . .
et cetera. So, her Honour has opened up an encompassing universe of concepts which encompasses this case. If one turns to page 493. My copy is very dull, but it is in the middle of the page:
If the defendant’s breach has “materially contributed” to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage.
Pausing there, your Honours may have noticed that it was a feature of the applicant’s case below that they asserted, no, that the cause of asbestos must have needed to be found to have been independently causative. Wrong. That is the novel proposition in this Court, not our position. Can I move quickly to an overview. I think it is probably not of great utility for me to go to the places in the trial judge’s reasons which were adopted by the majority where his Honour recites the correct test. We have set them out in our submissions. His Honour on dozens of occasions sets out the correct test , on dozens of occasions not only recites them but says, “I now have to turn to material cause because that is not enough”. Perhaps the best one I can go to – I have been on a number of them – is at page 303. If your Honours have time and in the event that your Honours are going to take time to think about it, the other of many dozens, best ones to look at are at pages 15, 74, 186, 282 to 283 and 286. If I can turn to 303, paragraph 687:
Here, if one concentrates on the effect of Mr Cotton’s occupational exposures to asbestos alone, and takes that in combination with the epidemiological evidence, the probabilities are quite high that the asbestos exposure alone did not cause his lung cancer.
A disarmingly frank introduction to the paragraph –
On the other hand, I am satisfied that the situation is very different if the question is posed, whether on the probabilities, Mr Cotton’s two sequential periods of occupational exposure to asbestos, acting in combination with his habit of smoking, contributed to the development and/or progress of his fatal tumour.
That is, not is he a member of the class of persons in whom risk is elevated but, given that he is a member of that class, has his particular circumstances resulted in the material contribution being established? What is then said:
there is really no answer to the evidence of Professors Musk, Wan, Dr Kendall, Professor de Klerk, Dr Leigh and Professor Berry that a not insignificant contribution to the combined causative effect was due to this asbestos exposure.
The Court of Appeal, the majority, adopted exactly the same approach. His Honour the Chief Judge, the Chief Justice below, disagreed that that evidence was sufficient to cross the border but what was he doing asking the question on the facts, was the border crossed, not is there a different test which is necessary to expound.
I see my time has expired. I have not addressed some of the other principal issues, including, for instance, that there is a rift in the decisions between the courts of different States and I simply rely on what we have written about that. Unless your Honours are minded to hear further about it we say the short answer is ‑ ‑ ‑
CRENNAN J: By all means take another five minutes.
MR FINCH: Thank you, your Honour. Can I just, in accepting your Honour’s kind invitation, the same sorts of questions have already been dismissed in an application for special leave by the company, Jsekarb, which is set out, if your Honours are minded to look at it, at tab 13 of our bundle where if your Honours see at tab 13 the Court constituted by Justices Gaudron and Hayne were exposed to precisely the same sorts of argument. Your Honours see at about point 5:
HAYNE J: And it was found, was it not, as a fact that the mesothelioma was caused by the cumulative effect of exposure to which the plaintiff was exposed?
Two points from the bottom:
MR WALKER: No. For the reasons already exposed by Justice Hayne’s question to me, it follows that it was not found to be the sole cause.
GAUDRON J: That is right. And if it was not found to be the sole cause, and there was a finding that it was the combined effect, then unless you can establish “of no possible causative impact”, you lose.
There was an exchange of pleasantries after that culminating in her Honour’s observations on the second‑last page, 8 of 9, in the middle of the page:
Once that is understood, it is irrelevant that it was not and could not have been the sole cause.
Our point about that is this Court has already been asked to consider the tests that are applicable in cases just like this one and has declined the opportunity. On the question of increased ‑ ‑ ‑
CRENNAN J: There is always a right time, I suppose.
MR FINCH: Yes, that is right. Justice Handley used to say to me, the best way to start an application for special leave was to say the law has been settled for 300 years, your Honours. On the question of the divergence between the States - the divergence, insofar as it appears to be a divergence - we do not accept that there is one – is perhaps best summarised in the case of Gett which is at tab 4 of our learned friend’s bundle, a
decision in the New South Wales Court of Appeal and it is at page 53 of 81 of that long decision under the heading - do your Honours see there, “(b) shifting burden of proof”?
CRENNAN J: Yes.
MR FINCH: That is perhaps the thing I need to emphasise but over the page at 54 of 81, the first paragraph, a bundle of authorities were referred to:
compare Amaca Pty Limited v Hannell [2007] WASCA 158 at [395] which appears to support a shifting evidential onus once there is proven a breach of duty followed by an injury within the area of foreseeable risk.
This is not the vehicle to test the assertion that there has been some new rule of law followed which involves a shifting of the burden of the risk. That is not what the Court of Appeal below did. There was no discussion below of whether the evidential burden had shifted. There were no submissions directed to that matter. It was not an issue. Perhaps it was an issue in Hannell but that case is gone and this case cannot be the vehicle for reconsidering whether or not that case involved a shifting burden.
Here, the burden was assumed by the plaintiff at first instance. It involved accepting that elevated risk was not good enough. It involved undertaking the burden of establishing that causation had been established in the sense of material contribution. It involved no express or implicit departure from orthodoxy. There is no, in this case, question which can be resolved to clear up whether or not there has been a divergence in authority between the States because there is not the occasion on the facts to do it.
I appreciate that there are a large number of matters, including exchanges of pleasantries about differences on the facts in the summaries of argument. I do not intend to ask your Honours to listen to me on that.
CRENNAN J: No, thank you. Yes, thank you, Mr Finch. We would like to hear from you, Mr Jackson.
MR JACKSON: Your Honours, could I just start by saying, if one goes to volume 2 at page 479 in the reasons for judgment of the majority in the Court of Appeal, what your Honours will see in paragraph 336 is that they say in the middle of the paragraph:
Once it is determined that tobacco smoking and all asbestos exposures operated cumulatively, the only remaining issue is whether each asbestos exposure made a material contribution.
That involves the assumption that there was a cumulative operation. If one goes to the immediately preceding page, page 478, what your Honours will see in the – the paragraph at the top of the page is a quotation from the primary judge’s reasons – and you will see in the last four or five lines of that, about letter B on the page that his summary of the evidence was:
That qualitative evidence, and indeed all the clinical medical evidence bearing upon the effects of these two carcinogens in combination, is to the effect that the two combine to give a greater risk, and therefore frequency of cases, of lung cancer than either alone.
Your Honours, one goes from that to paragraph 335 in the majority reasons on the same page and you will see that they then say:
It is apparent from these paragraphs . . . that the trial judge accepted that tobacco smoke and asbestos operated cumulatively.
Well, in the sense that he referred to in the paragraph that I just quoted that there is an increased risk. They rely, however, your Honours, in that paragraph on what is said to have been said by Dr Leigh:
that the asbestos exposure would have been a significant independent risk factor and would also have had a synergistic effect with tobacco in causing Mr Cotton’s lung cancer and thus made a material contribution –
Your Honours will see the passage that is there referred to from Dr Leigh’s statement in the exhibit and you will see, your Honours, that the way it is put is:
it is not possible in my view to separate their effects in the individual case when both have acted and it is more probable than not, in that in this situation, the lung cancer was the singular result of the two factors acting together.
He goes on, of course, to say in the next sentence quoted:
that exposure to either factor alone is capable of causing lung cancer.
Your Honours will see what he said, put a little more specifically, at page 170 in volume 1 in the primary judge’s reasons, paragraph 354. You will see the quotation from Dr Leigh’s reports preceding the passage that the majority quote. Your Honours will see then that he says in the first new paragraph at page 171 that:
Even though Mr Cotton was a smoker, the asbestos exposure would have been a significant independent risk factor and would also have had a synergistic effect with tobacco in causing the lung cancer and thus made a material contribution –
But when one goes to the passage that is then quoted three lines further down, you will see, your Honours, that he appears to be recognising that it does not necessarily occur. Now, your Honours, if one goes to what was said about the evidence of the medical and other witnesses by the Chief Justice in the Court of Appeal, you will see that in paragraph 208 of his reasons, which are relevantly at page 440 about 10 lines into that page, he said:
The second problem is that Dr Leigh’s process of reasoning is contrary to the position of all the other experts, whose evidence was to the effect that, within a group of lung cancer sufferers exposed to both carcinogens, there will be some who would have contracted the disease irrespective of their exposure to one of the carcinogens (and for whom that exposure made no material contribution).
Your Honours, in our submission, the case is one where in the end it became simply one where there was an increased risk of exposure. I should say two things about that. The first was that, as the primary judge said – and I do not think I need to take your Honours to the passage – in volume 1 at page 161, paragraph 337, quoting one of the medical witnesses, it is a consequence of continuing to smoke that if no other cause of death intervenes and you smoke long enough you will die of lung cancer.
Your Honours, that grim prospect, of course, brings about a situation where there is no possibility of suing anyone, apart from unusual cases like being in the Army or something of that kind where it said stress caused it, unless some other cause is found. The second thing, your Honours, is that the amount of the increased risk was found by the primary judge to be of the order of 10 to 20 per cent. You will see that on page 193 in volume 1 at paragraph 409.
Your Honours, whilst majority in the Court of Appeal purported to be applying the – what have been described as established principles to particular facts or so it is contended, the reality of the situation in our submission is that what has occurred has been that in circumstances where – and there would be many such cases – in circumstances where one has the two possibilities, that is a person who has been a smoker for a significant period who develops lung cancer and on the other hand has had an exposure to asbestos in one fashion or another the result is almost certain to be, except perhaps where the exposure to asbestos is de minimis that the
asbestos provider – if I can use that expression – will be held liable and in the ordinary course of events will be held liable without there being some distribution of liability, a case where they will be held equally liable to other persons if there are any other persons to be held liable.
CRENNAN J: So are you saying, are you, that in reality there was an exception to the orthodox principles?
MR JACKSON: Yes.
CRENNAN J: There was a statement of principle which has been abundantly demonstrated by Mr Finch.
MR JACKSON: Yes, your Honour. What we are seeking ‑ ‑ ‑
CRENNAN J: But in the final analysis a special exception was made for this case.
MR JACKSON: That is our submission, your Honour ‑ this case and flows on to these types of cases. Your Honours, those are our submissions.
CRENNAN J: Yes. May we hear from you now, Mr Watson?
MR WATSON: Your Honours, I would wish to take you to the application book 2 to page 473. Paragraph 315 in the majority decision we say is the centrepiece of their judgment and there are three propositions which come from it. The first can be seen that it is suggested that where causes are interdependent, et cetera, and then if one links that to the final sentence, it will be seen that where it is said that the causes are interdependent, thus cumulative, a low threshold applies.
Your Honour Justice Crennan asked a question about evidential gap. In paragraph 312 on the previous page there is an additional reference to the evidential gap which your Honours will see can apply even in determining whether or not an injury is a cumulative injury. In paragraph 313 it is said that if Hannell is wrong, then the law would be that stated in Seltsam v McGuiness. That all depends upon this determination of cumulative injury and, in return, we go back to the final sentence of paragraph 315 which says, creating an exception for this case, there is a low threshold to apply. Your Honours, I think that is all I wish to say.
CRENNAN J: So it is your answer to Mr Finch’s submission that a perfectly orthodox approach was adopted in the cases in which you were concerned?
MR WATSON: Well, your Honours – may I show your Honours, it is very plain that there was a feeling that Fairchild, or considerations like Fairchild, were applicable. Mr Finch showed you something in the case of Hannell. If I could take you to our case book, behind tab 2 is the whole of the judgment, but really I wish to take your Honours back only two pages from the end.
CRENNAN J: Yes.
MR WATSON: In paragraph 417 there is discussion of what the cases mean and in the final sentence is a statement that:
The application of the Bennett test . . . produces the same result as in Fairchild.
Then there is a discussion of the Bennett test, and at paragraph 420 your Honours will see a declaration that what their Honours are applying in reality is the Fairchild exception, or the evidential gap, recognised first by Lord Wilberforce. Thank you, your Honours.
CRENNAN J: Thank you. Yes, Mr Finch.
MR FINCH: Thank you, your Honour. Briefly as I can, might I reply firstly to the matters related to my learned friend, Mr Jackson, in summary and without doing any disrespect to the matters that he raised. Two of the most important submissions are that there was a special case or special exception made in this case and that there would be almost inevitable outcomes in favour of applicants or plaintiffs below if this special case were to be persisted in. That, with respect, is not so. If your Honours turn to page 479 of the application book volume 2 in the decision of the majority below, in the course of discussing their disagreement their disagreement with the observations of the Chief Justice about what the medical evidence that Dr Leigh made, their Honours made these observations in paragraph 337 starting at the third line:
First, the fact that asbestos and tobacco smoke operate cumulatively does not dictate a finding that the contribution made by exposure to asbestos is material.
That is, there will not be inevitability. They refer to Amaca Pty Ltd v Moss where the plaintiff failed because the court found that it was not a material contribution, notwithstanding that it was there. Secondly:
As acknowledged by Professor de Klerk, the epidemiological evidence is based on the assumption that tobacco smoking and asbestos are independent not cumulative causes. Epidemiology is concerned with probabilities, not the actual cause of the disease when the risk has materialised.
It should be interpolated there that is a paraphrase of eventuated orthodox application of test:
Whether or not potential causes operate cumulatively is a matter of medical science. Only Dr Leigh is a specialist physician and epidemiologist. The other epidemiological experts do not have medical qualifications.
Pausing there, no special case, simply the actual facts as demonstrated by the medical evidence. One could always, I suppose, call it a special case where one has not been able to demonstrate that there would have been causation in any event, but that is to do no more than to describe causes that are cumulative in completely standard terms. If one turns over then to page 481 at the bottom of the page, paragraph 344, again to reiterate:
The finding in [513] –
that is his Honour’s finding at first instance –
that the successive asbestos exposures operated cumulatively led to the further finding that each period of employment‑related asbestos exposure materially contributed –
That is, they did not abandon the search for material contribution and replace it with statistics or risk. They looked at the trial judge who looked at the witnesses and said, “Well, there is a finding of material contribution in addition to the risk and we adopt it”. They reiterate again just finding cumulatively does not tick the box.
Over the page at 482 the same thing is continued with and then finally at page 483 to 484, starting at the bottom of the page, paragraph 353 – and I am doing this only to demonstrate that the Court of Appeal majority did not abandon the search for material contribution and simply say, “We agree with the trial judge”, they did the exercise themselves again but in a more summary fashion:
Both experts attributed a greater risk to the Millennium exposure. Having regard to the apportionments, the qualitative evidence of the extent of the separate exposures, the trial judge’s proper caution relating to the limitations of the RR . . . and the synergistic effect of asbestos and tobacco smoke –
Of course, pausing there, the synergistic effect of tobacco smoke and asbestos was considered in the light of the actual experience of the deceased, Mr Cotton, not an academic exercise talking about exposures in large populations. As to the qualitative evidence of the extent of the separate employment exposures we rely on the findings made by the trial judge which we uphold for reasons given below. Even if the findings were flawed – I should pause there, your Honours might have noticed there were some errors in the attribution of percentages and the like ‑ ‑ ‑
CRENNAN J: Yes.
MR FINCH: ‑ ‑ ‑ and an unimportant error about the terminology used about divisible and indivisible which did not matter in the end.
CRENNAN J: Yes, we noted that.
MR FINCH: It is clear – and this is their own finding – Mr Cotton was exposed to very significant levels of respirable asbestos fibres over each employment period sufficient to justify a finding that each made a material contribution. That is not an epidemiological finding, it is not a finding of elevated risk, it is not a finding which uses or deploys some test which is unknown to the law.
Finally, turning to my learned friend, Mr Watson’s submissions, particularly insofar as they concern the remarks of the majority at paragraph 313, we take it that that submission is an amplification of what your Honours find in Amaca’s argument” at page 551 of the application book 2. If your Honours turn to that page, if you would be good enough to look at paragraph 40, this is page 551, application book 2. This is the end of Amaca’s argument:
The questions which would be raised in an appeal are not theoretical: the majority acknowledge that Amaca would succeed if orthodox rules of causation were applied -
They cite for that proposition paragraph 313 and as the last thing I will do, can I take your Honours back to 313.
CRENNAN J: Yes, we have looked at it.
MR FINCH: Paragraph 313 does not say that. It is postulated on the possibility that the majority in Hannell is in error on a particular point and then says “epidemiological evidence would be the only course open to a plaintiff to prove causation” and he would write (a) “where the potential causes are alternative” - that is not the case here, or (b) “the medical evidence does not permit a finding that the potential causes are cumulative”.
That is not the case here. In those circumstances (that is, not this case but some theoretical case):
there is authority for the proposition that the law requires a RR in the order of approaching 2.0 -
They quote Seltsam for that purpose but your Honours will recall the feature of Seltsam was that his Honour the Chief Justice spent many pages saying how it is that one must approach epidemiological evidence with great caution is not the only guide. So the proposition which my learned friend contends in that respect is simply wrong. They are our submissions, your Honours.
CRENNAN J: There will be a grant of special leave in all three matters. That brings us to the question, if the matters are heard together, which seems convenient, how much time would be required?
MR JACKSON: Your Honour, I think the case would take more than a day. I think it would be over in under a day and a half.
CRENNAN J: Yes. Do you agree with that, Mr Finch?
MR FINCH: Yes, your Honours, assuming your Honours do not accept the invitation to indulge in a rehearing of the facts because ‑ ‑ ‑
CRENNAN J: Are you suggesting that in one way or another it might be safer to allow two days?
MR FINCH: I think so, your Honours, yes because I think inevitably one is going to have to drag your Honours through the medical evidence and ‑ ‑ ‑
CRENNAN J: You are not just speaking in terrorem, are you, Mr Finch?
MR FINCH: No, too late for that.
CRENNAN J: All right. There will be a hearing set aside on the basis of two days and special leave is granted.
AT 12.18 PM THE MATTER WAS CONCLUDED
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