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  HCA 53 has confirmed that all
material exposures to asbestos may be deemed a cause of
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 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
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
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
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
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
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
 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  NSWCA
Mesothelioma claims will continue to be part of the Australian
litigation landscape for a number of years. As Heydon J
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
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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