March 2010

The Smoking Gun: worker's compensation for lung cancer followng asbestos exposure where plaintiff was a smoker

The High Court recently had to consider a situation where a plaintiff had been exposed to asbestos, but was also a long-term smoker, such that difficult questions arose about the causation of his lung cancer.

The case

In Amaca Pty Limited v Ellis [2010] HCA 5, Mr Ellis (who had since died, and was now represented by his widow as executor of the estate) had smoked between 15 and 20 cigarettes a day for 26 years, before he was diagnosed with lung cancer. He also had suffered industrial exposure to asbestos with two different employers, who had acquired asbestos cement pipes from Amaca (previously known as James Hardie).

The plaintiff was successful at trial and in the Court of Appeal of Western Australia, but failed in the High Court. The crucial question for decision was what had caused the plaintiff to contract lung cancer. It is by no means unusual for many asbestos victims to also have been heavy smokers. However, with the particular type of cancer suffered by the plaintiff, the relevant experts (while unable to state categorically what caused the cancer) thought it more likely than not that the cancer had not been caused by his asbestos exposure. The plaintiff therefore failed in his attempt to obtain damages from the relevant employers and Amaca.

Implications

On one view of it, the decision only has a very small, and precise, application i.e. to forthcoming asbestos cases with this particular type of cancer. However, the High Court also made some interesting comments on causation generally. In particular, the High Court looked closely at when the circumstances of a case can lead to an inference being drawn that one or more of the defendants was negligent.

Leaving aside that the evidence in this particular case did not support that assertion, it was noteworthy that the Court said that it is not sufficient to find liability in a defendant when its actions only may have been a cause of a plaintiff’s injuries or disabilities.

In other words, for a plaintiff to draw an inference from the various available explanations for the injury, he/she needs at the very least to be in a position to show that the conclusion for which he/she argues is more likely than not to be the correct one.

The decision in the case partly turned on the uncertainty as to exactly what caused the plaintiff’s particular type of cancer. Nevertheless, the decision will also sound a warning to plaintiffs in other cases who may be inclined to make no more than a speculative assumption as to what has caused their injury or loss.

 

Author: David Greenhalgh