Seltsam Pty Ltd v McGuiness

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NEW SOUTH WALES COURT OF APPEAL

CITATION:     Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000]  NSWCA 29

FILE NUMBER(S):
40456/97
40463/97

HEARING DATE(S):           2 - 3 August 1999

JUDGMENT DATE:            07/03/2000

PARTIES:
Seltsam Pty Limited (Appellant) (40456/97)
Robert George McGuiness (First Respondent)
James Hardie & Coy Pty Limited (Appellant) (40463/97)
Robert Geroge McGuiness (First Respondent)

JUDGMENT OF:      Spigelman CJ Stein JA Davies AJA   

LOWER COURT JURISDICTION: Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S):        DDT 51/93

LOWER COURT JUDICIAL OFFICER:     Judge Maguire, QC

COUNSEL:
R Burbidge QC/S Rushton (Appellant - Seltsam)
C Gee QC/J McIntyre (Appellant - James Hardie)
J T Rush QC/G Farmer (First Respondent)

SOLICITORS:
Toomey Pegg & Drevikovsky (Appellant - Seltsam)
A O Ellison & Co (Appellant - James Hardie)
Turner Freeman (First Respondent)

CATCHWORDS:
NEGLIGENCE - proof of negligence - causation - whether exposure to asbestos caused renal cell carcinoma - use of epidemiological studies
EVIDENCE - opinion evidence - expert opinion - Evidence Act 1995 (NSW) s 79
DUST DISEASES - Appellate Jurisdiction of Supreme Court - Dust Diseases Tribunal Act 1989 s 32 - D

LEGISLATION CITED:
Compensation Court Act 1984
Courts Legislation Amendment Act 1998
Dust Diseases Tribunal Act 1989
Evidence Act 1995
Interpretation Act 1987

DECISION:
Appeals allowed
Set aside order 2 of the Dust Diseases Tribunal
Each party to bear his and its own costs of the appeals

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA    40456/97  

CA    40463/97

DDT  51/93

SPIGELMAN CJ
STEIN JA
DAVIES AJA

Tuesday, 7 March 2000

SELTSAM PTY LTD v McGUINESS & ANOR

JAMES HARDIE & COY PTY LIMITED v  McGUINESS & ANOR

Negligence - proof of negligence - causation - whether exposure to asbestos caused renal cell carcinoma - use of epidemiological studies

Evidence - opinion evidence - expert opinion - Evidence Act 1995 (NSW) s79

Dust Diseases - Appellate Jurisdiction of Supreme Court - Dust Diseases Tribunal Act 1989 s32

A plaintiff was awarded damages in the Dust Diseases Tribunal for renal cell carcinoma which was found to be caused by the defendants’ negligence in exposing him to asbestos.

The principle issue raised in the appeal was the use of epidemiological evidence to prove causation. A preliminary issue was whether the appellate jurisdiction of the Supreme Court was determined by s32 of the Dust Diseases Tribunal Act 1989 as in force before amendment by the Courts Legislation Amendment Act 1998.

Held: (Allowing the appeal)

Nature of Appeal

(Per Spigelman CJ, Stein JA and Davies AJA agreeing)

  1. Section 32 of the Dust Diseases Tribunal Act as in force before it was amended by the Courts Legislation Amendment Act applies to an appeal instituted before the commencement of the amended provision.  Fishburn v Electricity Commission of New South Wales (1999) NSWCA 401 distinguished.

  1. Parliament must express an intention to remove the jurisdiction of a court which has already been invoked in clear and unambiguous words.  Bropho v Western Australia (1990) 171 CLR 1; Magrath v…

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Details
Case
[2000] NSWCA 29
Decision Date

CaseChat Overview and Summary

Seltsam Pty Ltd appealed to the Appellate Jurisdiction of the Supreme Court of New South Wales against a decision of the Dust Diseases Tribunal. The dispute concerned whether the respondent, Mr. McGuiness, had proven that his exposure to asbestos materially contributed to his renal cell carcinoma.

The primary legal issues before the Court were whether the expert evidence presented by the respondent was sufficient to establish causation on the balance of probabilities, and whether the trial judge had erred in relying on that evidence. Specifically, the Court had to consider the admissibility and weight of epidemiological studies in determining causation in an individual case, and the limitations of an epidemiologist's expertise in providing a definitive opinion on individual causation.

The Court found that the trial judge had placed undue reliance on the opinions of Dr. McCredie, an epidemiologist, and Dr. Burns, a medical practitioner. While Dr. McCredie's expertise lay in population-based statistical analysis, she conceded in cross-examination that her discipline did not permit her to make a particular diagnosis or determine causation for an individual patient. Dr. Burns, despite having clinical experience, also relied almost exclusively on epidemiological studies, which he acknowledged had not established a clearly accepted association between asbestos exposure and renal carcinoma, unlike the well-established link with cigarette smoking. The Court concluded that the expert evidence, particularly concerning the epidemiological studies, was insufficient to establish that asbestos exposure materially contributed to the respondent's condition on the balance of probabilities.

Consequently, the appeals were allowed, and the order of the Dust Diseases Tribunal was set aside. Each party was ordered to bear their own costs of the appeals.

Orders

Orders of the court

Appeals allowed

Set aside order 2 of the Dust Diseases Tribunal

Each party to bear his and its own costs of the appeals

Background

Background to the litigation

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Evidence

Evidence Before The Court

This error justifies the intervention of the Court. On the basis that the old s32 applies, this Court must assess the evidence for itself.Expert Evidence The trial judge placed particular reliance on the opinions of two experts called by the Respondent: Dr McCredie, an epidemiologist and Dr Burns, a medical practitioner. Dr McCredie concluded her report of 2 July with the statement:“On the balance of probabilities, obesity and exposure to asbestos materially contributed to the causation of renal cell carcinoma in this case.” (emphasis added) This conclusion was based on her analysis of the epidemiological studies which she summarised as follows:“The majority of population based epidemiological studies which have the power (sufficient number of subjects studied) to detect such an association … have found an increased risk of about 1.5 to 2.0 fold linked with exposure to asbestos - in most studies exposure has been assessed according to the respondent’s report without verification.” In cross-examination, Dr McCredie’s assertion of an opinion as to causation in the individual case was qualified, but not withdrawn:“Q I think you said earlier, doctor, that your speciality in epidemiology is one looking at statistics and populations and diseases and that your discipline does not permit you to make a particular diagnosis for a particular patient.A That’s exactly right.”and“Q … but you are not in a position, I would suggest, to say that this man’s cancer on the balance of probabilities was materially contributed to by his asbestos exposure, are you.A I have said so.Q I realise you said so, doctor, but I had the impression from your evidence earlier that all you were saying you were able to do, was to look at statistics and give an opinion as to whether or not exposure to a particular substance may or may not have an association with the development of cancer.A That’s true.” (Black AB 176). Dr McCredie was an epidemiologist and, as his Honour indicated, her opinion was based on that expertise. There was nothing in the nature of clinical experience on which she could draw. Dr Burns, who had such experience relied, almost exclusively, on epidemiological studies. In his report of 26 June 1997, Dr Burns concluded that:“In my opinion on the balance of probabilities, his asbestos exposure while working with Wunderlich & Hardies in the period 1950 to 1984 contributed to the development of his renal carcinoma.” The question he was addressing was “Can such a tumour be attributable to asbestos exposure?”. In this context he referred to the “close association between cigarette smoking and the development of renal carcinoma”. He then said:“The association between asbestos exposure and renal carcinoma has not yet been so clearly accepted.” Dr Burns went on to refer to four matters as the foundation of his opinion, to which he also referred in his oral evidence:(i) The fact that asbestos fibre has been found in urine and in the kidneys.(ii) “Asbestos is generally accepted to be a carcinogen in general [mesothelioma, lung cancer].”(iii) “[Asbestos] … has been shown to be a carcinogen in the rat kidney.”(iv) The epidemiological studies, specifically those of Selikoff, Enterline and the withdrawn Maclure study, together with the review of the literature by Smith, McCredie and Stewart, and the Mandel study.

Decision

Reasons for decision

SPIGELMAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: SPIGELMAN CJ

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