On 30 August 2011, a Victorian Supreme Court jury returned a verdict in favour of a plaintiff suffering from mesothelioma in the amount of $1,150,000. The case is the first asbestos-related personal injury proceeding to run to verdict in Victoria in a number of years.
In addition to the substantial award of damages, the decision on appeal by the Victorian Supreme Court confronts similar issues of uncertain causation to those in Evans v Queanbeyan City Council  NSWCA 230 (discussed in the September edition of the Public law report).
On 29 March 2011, Eric King (the plaintiff) commenced proceedings against Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd) (Amaca) seeking damages in respect of mesothelioma he allegedly contracted as a result of exposure to asbestos.
The plaintiff alleged that Amaca had negligently exposed him to asbestos dust and fibres when he visited one of Amaca's factories in Perth to repair a machine. The plaintiff's evidence at trial was that his exposure to asbestos dust and fibres at the factory was for a total of six hours (Amaca exposure) and that he had not had any other known exposures to asbestos, save for exposure to asbestos fibres present in the environment generally to which most people are exposed (Background exposure).
A central issue in the proceeding was whether the plaintiff's mesothelioma was caused by his relatively low Amaca exposure or his Background exposure. In accordance with the decision of the High Court in Amaca v Ellis (2010) 240 CLR 111, to be successful in his claim, the plaintiff had to establish, on the balance of probabilities, that the Amaca exposure caused or materially contributed to his contracting of mesothelioma; it was not sufficient for the plaintiff to show that the Amaca exposure increased the risk of him contracting mesothelioma or may have caused his mesothelioma.
In his writ, the plaintiff sought trial by a judge and jury. However, on the first day of the trial, Amaca applied for a direction that the trial proceed without a jury under Rule 47 of the Supreme Court Rules, on the basis that:
- the case involved complex medical and scientific issues and there is conflicting case law on causation, and
- trial by judge alone would result in a reasoned judgment which could facilitate an appeal.
After hearing argument, the trial judge refused Amaca's application and subsequently delivered written reasons (King v Amaca Pty Ltd  VSC 433). In his reasons, the trial judge emphasised the Court's "long tradition of placing great faith in the ability of civil juries to determine complex factual issues once the law has been explained to them". The trial judge also stated that the decision to dispense with the jury depended on an assessment of whether the judge could adequately direct the jury on the legal and factual issues involved and whether the jury was capable of determining the factual issues on the basis of those directions.
In considering Amaca's application, the trial judge reviewed the parties' expert reports and the authorities relating to causation in mesothelioma cases. Although the trial judge agreed that the case involved complex legal, medical and scientific issues, he decided that the expert evidence could be adduced in a way that the jury could understand and that the jury could be directed in a way that would enable it to understand the legal principles it would be required to apply.
With regard to Amaca's submission that the trial should proceed by judge alone so that the parties received a reasoned judgment which would facilitate an appeal, the trial judge held that an order should not be made under Rule 47 for the purposes of giving or depriving a party of a forensic advantage.
The trial proceeded with a jury and ran for eight days, following which the jury returned a unanimous verdict for the plaintiff in the amount of $1,150,000, which has been reported as including $730,000 for the plaintiff's pain and suffering and loss of enjoyment of life.
After the jury's verdict was announced, Amaca applied for orders that the jury's verdict be set aside and that judgment be entered in its favour "non obstante veredicto" (or notwithstanding the jury's verdict), on grounds which included that the plaintiff had not established a causal link between any negligence on the part of Amaca and his mesothelioma (King v Amaca Pty Ltd  VSC 422).
To succeed in its application, Amaca had to satisfy the Court that there was no evidence upon which the jury, properly instructed and acting reasonably, could find that the Amaca exposure was a cause of, or materially contributed to, the plaintiff's mesothelioma.
The Court noted that the parties' experts agreed that asbestos inhalation was the only possible cause of the plaintiff's mesothelioma, but also that it was not possible to prove scientifically that the plaintiff's mesothelioma was caused by an asbestos fibre inhaled during the Amaca exposure rather than the Background exposure.
Amaca also adduced expert evidence from an occupational hygienist and an epidemiologist to the effect that the plaintiff's total lifetime risk of contracting mesothelioma from the factory exposure was 4% and his risk of contracting mesothelioma from the Background exposure was 96%.
The plaintiff challenged Amaca's expert evidence and adduced his own expert evidence, including from occupational physicians specialising in asbestos-related diseases, to the effect that:
- the current scientific knowledge indicates that all inhaled asbestos fibres have something to do with the progress or development of mesothelioma where it has occurred, and
- whatever the level of the Amaca exposure, it increased the plaintiff's risk of contracting mesothelioma beyond the risk of the Background exposure, because any exposure to asbestos increases the risk of developing mesothelioma. As the plaintiff's risk of developing mesothelioma had been realised, it must be concluded that the Amaca exposure was a cause of the mesothelioma.
In considering Amaca's application for judgment notwithstanding the jury's verdict, the Court found that it was reasonable for the jury to reject the evidence of Amaca's expert witnesses on the basis that the data underlying their calculations was unreliable. The Court also said that it was open to the jury to rely on the plaintiff's expert evidence about the cause of the plaintiff's mesothelioma.
Despite the fact that it was not scientifically possible to prove that an asbestos fibre inhaled during the Amaca exposure caused the plaintiff's mesothelioma, the Court found that the plaintiff's expert evidence was sufficient for the jury to conclude, on the balance of probabilities, that the Amaca exposure caused or materially contributed to the plaintiff's mesothelioma. The Court also pointed out that the jury had been directed as to the differences between a risk and a cause and could not have been confused regarding that difference.
- The immediate effect of the decision is that settlement expectations of other plaintiffs suffering from asbestos related illnesses, in particular mesothelioma, are likely to be significantly increased. It is also clear that expert scientific evidence will remain important in establishing a causal link between an exposure to asbestos and mesothelioma and that where, as in Victoria, civil juries still exist, courts will be reluctant to take these issues away from a jury.
- It is understood that Amaca has lodged an appeal from this decision to the High Court. On 4 and 5 October 2011, the High Court heard an appeal brought by Amaca from the decision of the New South Wales Court of Appeal in Amaca v Booth  NSWCA 344, which also relates to multiple possible causes in mesothelioma cases. It is to be hoped that some clear guidance emerges from the High Court's decisions in these cases.
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