In brief - High Court asbestos decision confirms previous approach - raises question of legislation

The High Court's decision on 14 December 2011 in the case Amaca Pty Limited v Booth [2011] HCA 53 has confirmed that all material exposures to asbestos may be deemed a cause of mesothelioma.

Asbestos cases continue to be appealed

Cases involving exposure to asbestos continue to attract appellate court attention. Yesterday's decision by the High Court in Amaca v Booth reviewed expert evidence available to a trial judge in the Dust Diseases Tribunal (DDT) of New South Wales.

The majority of the Court concluded that such evidence supported a conclusion that all material exposures to asbestos may be deemed a cause of mesothelioma. The decision will impact the way such cases are run at trial and also the question of insurance cover for mesothelioma claims in general.

Booth exposed to asbestos at work 

John Booth was a mechanic. He worked with brake linings containing asbestos. Like all Australians he was exposed to ambient asbestos. He also had minor additional exposure to asbestos in home renovation and cartage work. Mr Booth contracted mesothelioma. He sued the manufacturers of the brake linings with which he worked, Amaca (formerly James Hardie) and Amaba Pty Limited (formerly Hardie-Ferodo).

At trial various medical experts for Mr Booth expressed a view that all asbestos exposures above the ambient background contribute to the cause of mesothelioma. Based on that evidence the trial judge (Curtis DCJ) found in favour of Mr Booth and awarded him damages of $326,640.

NSW Court of Appeal dismisses appeal of brake lining manufacturers

Amaca and Amaba appealed to the NSW Court of Appeal. They argued that, properly analysed, the evidence of the relevant experts did no more than express a view that exposure to asbestos added to the risk of contracting mesothelioma - not that all exposures were a legal cause of injury. This argument had previously been adopted as the factual sub-stratum for the revolutionary decision of the House of Lords in Fairchild v Glenhaven Funeral Services Limited.

The NSW Court of Appeal dismissed the manufacturers' appeal. They obtained Special Leave to Appeal to the High Court.

High Court agrees with decision of Dust Diseases Tribunal

The High Court found that the expert evidence before the trial judge supported a finding that cumulative exposure to asbestos was the cause of Mr Booth's injury. That factual finding was unimpeachable given the nature of appeal rights from the DDT - which are limited to questions of law.

Gummow, Hayne and Crennan JJ expressly agreed with the Court of Appeal's conclusion that:

Findings as to the cumulative effect of exposure to asbestos were undoubtedly open.

French CJ stated:

The cumulative effect mechanism, accepted by [the trial judge], implicated the products of both Amaca and Amaba in the development of Mr Booth's disease. The primary judge's interpretation of the expert evidence and his conclusions from it, were open as a matter of law. 

Heydon J dissented. In a careful analysis of the expert evidence, his Honour came to the conclusion that such material did no more than demonstrate that incremental exposure to asbestos adds to risk but could not be properly characterised as a legal cause of Mr Booth's injury.

Implications for future asbestos cases

The lessons from this case:

• Defendants in mesothelioma litigation should assume that absent compelling expert evidence of their own, each incremental negligently-caused exposure to asbestos will be deemed a cause of the illness (and as such align Australian law with the decision in Fairchild but on evidentiary as opposed to legal/policy grounds)
• While a causation defence is available in asbestos litigation, it will be easier to make out where there is a competing risk factor - for example smoking (Amaca Pty Limited v Ellis [2010] HCA 5)
• The decision raises an interesting issue as to the trigger for any insurance which might meet the claim. If all exposure is deemed causal then will all policies of insurance that cover the relevant exposure period and respond to such a claim be triggered (which is the approach which Santow JA took in his dissenting opinion in Orica Limited v CGU Insurance Limited [2003] NSWCA 331
• Mesothelioma claims will continue to be part of the Australian litigation landscape for a number of years. As Heydon J states:

The extent of exposure to asbestos amongst those now living, the likely exposure amongst those yet to be born, and the likelihood of further injury taking place when asbestos is removed from the many places where is it now found, mean that problems of the kind thrown up in these appeals will remain for decades to come. Perhaps a social-medical problem of this size requires a legislative solution. [Emphasis added] 

The remarks of Heydon J raise an important issue for discussion. One hopes that self interest and inertia do not lead to the issue being overlooked.

For further information or advice in relation to the High Court's decision or in asbestos matters generally, please contact the author.