Obiter

Amaca Pty Ltd v Ellis [2010] HCA 5

In Amaca Pty Ltd v Ellis,¹ the High Court determined that asbestos exposure at work was not a probable cause of a long-term smoker’s lung cancer — it was incorrect of the trial judge to assess causation by reference to the cumulative asbestos exposure over successive employment periods.

COURT: High Court of Australia (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

PARTIES: Amaca Pty Ltd & Ors (Appellants); Ellis as Executor of the Estate of Mr Cotton (Dec) and Ors (Respondents).²

PROCEDURAL HISTORY: Appeal from the Western Australian Court of Appeal.

• In the Supreme Court of Western Australia, the trial judge found all three defendants negligent. Breaches of the duties each of them owed to Mr Cotton had resulted in his exposure to asbestos fibre which caused, or materially contributed to, his contraction of lung cancer.³
• In the Court of Appeal of the Supreme Court of Western Australia, the defendants appeal was dismissed 2:1 (Steytler P and McLure JA, Martin CJ diss), upholding the primary judge’s decision.⁴ Appeal to the High Court (special leave) granted.⁵

FACTS:

1. In 2002, Mr Cotton died of lung cancer. He smoked up to 15-20 cigarettes per day, for about 26 years.⁶
2. Between 1975 and 1978, Mr Cotton worked for the South Australian Engineering and Water Supply Department, working with asbestos cement pipes manufactured by Amaca Pty Ltd.⁷
3. From 1990 until his death, Mr Cotton worked for Millennium Inorganic Chemicals Ltd, where he was exposed to respirable asbestos fibres.⁸
4. At trial, Ellis relied on statistical evidence of large population studies that supported an inference that exposure to respirable asbestos fibres, operating interdependently with tobacco smoke, caused Mr Cotton’s lung cancer.⁹

ISSUE:

The primary issue on appeal was whether it had been established at trial that it was more probable than not that exposure to asbestos fibres was a “cause” of Mr Cotton’s lung cancer.¹⁰

DECISION:

The High Court allowed the appeals of Amaca Pty Ltd, South Australia, and Millennium Inorganic Chemicals Ltd, as causation was not established.¹¹

The evidence did not establish facts which positively suggested that it was more probable than not that the negligence of any defendant was a cause of Mr Cotton’s cancer.¹² The evidence established only that exposure to asbestos may have been a cause, not that it was a probable cause.¹³

The statistical evidence pointed away from an inference that exposure to asbestos in combination with smoking tobacco was a probable cause of Mr Cotton’s lung cancer.¹⁴

It was incorrect to assess causation by reference to the cumulative asbestos exposure over successive employment periods by the trial judge.¹⁵ The Court at [38]:

The trial judge identified the relevant question in a way which did not
direct attention to whether the negligence of a particular defendant was a cause of
Mr Cotton’s cancer. The trial judge said that the plaintiff would succeed:¹⁶

“if the evidence establishes that it is more probable than not that
Mr Cotton’s lung cancer was caused by asbestos arising from one or both
of his periods of occupational exposure to that mineral or if it supports the
conclusion, on the probabilities, that his cancer was caused to a material
extent by the combined effects of his periods of asbestos exposure with the
effects of his chronic smoking”. (emphasis added)¹⁷

Not only did this framing of the question not distinguish between defendants, it
assumed (by its reference to “one or both” periods of exposure) that cumulative
exposure to asbestos, by the negligence of more than one defendant, would be
sufficient to establish the relevant causal connection between a defendant’s
negligence and the damage suffered.¹⁸

The appropriate analysis was to consider whether the individual breach of duty was, in itself, causative of the damage.¹⁹

ORDER:

In each matter, the appeal was allowed with costs.²⁰

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FOOTNOTES:

1. Amaca Pty Ltd v Ellis [2010] HCA 5; 240 CLR 111 (‘Ellis‘). ↩︎
2. Ibid. The Appellants include Amaca Pty Ltd, South Australia, Millennium Inorganic Chemicals Ltd. ↩︎
3. Ellis, Executor of the Estate of Paul Steven Cotton (Dec) v South Australia [2006] WASC 270. ↩︎
4. The State of South Australia v Ellis [2008] WASCA 200; 37 WAR 1. ↩︎
5. See Ellis (n 1); High Court of Australia (Web Page, 3 March 2010) <https://cdn.hcourt.gov.au> ↩︎
6. Ellis (n 1) 1 [3]. ↩︎
7. See Ellis (n 1). Amaca Pty Ltd formally known as James Hardie & Coy Pty Ltd. ↩︎
8. Ellis (n 1) 1 [4]. ↩︎
9. See ibid (n 5). ↩︎
10. Ellis (n 1) 3 [10].  ↩︎
11. Ibid 3–4 [13]. ↩︎
12. Ibid. ↩︎
13. Ibid 4 [14]. ↩︎
14. See ibid (n 5). ↩︎
15. Ellis (n 1) 10–11 [38]. ↩︎
16. Ibid. ↩︎
17. Ellis, Executor of the Estate of Paul Steven Cotton (Dec) v South Australia [2006] WASC 270, 641. ↩︎
18. Ellis (n 1) 10–11 [38]. ↩︎
19. Ibid 12 [42]. ↩︎
20. Ibid 22 [74]. ↩︎