Published in Insurance/Reinsurance Bulletin
Amaca Pty Ltd v Ellis; the state of South Australia v Ellis;
Millennium Inorganic Chemicals Ltd v Ellis  HCA 5
A recent High Court of Australia case considers the causal nexus
between exposure to asbestos and lung cancer, where the cancer
victim had also been a significant cigarette smoker. The case
re-affirms the probable cause test: whether it is more probable
than not that the alleged cause in question was effective. Of
immediate relevance to bodily injury cases, it could also be
applied in other scenarios where loss may be attributable to
competing possible causes (or combinations thereof).
Mr Cotton smoked 15-20 cigarettes per day for around 26 years.
He was also exposed to asbestos in two workplaces for a total of 15
years. Mr Cotton died of cancer and his estate sued his former
employers and a manufacturer of the asbestos cement pipes he had
The trial judge held that the cumulative effect of smoking and
exposure to asbestos operated "in synergy" to cause Mr
Cotton's cancer and ordered the employers to pay damages in
negligence. The employers appealed, arguing that asbestos exposure
had not caused Mr Cotton's injury.
The High Court accepted that it could not be proved conclusively
how Mr Cotton contracted cancer. The victim's estate therefore
asked the Court instead to infer from the expert evidence that
asbestos exposure had caused the cancer.
In finding for the employers, the High Court confirmed that the
test is: "whether the plaintiff had established that it was
more probable than not that the exposure to asbestos was the
cause of the lung cancer". The possibility that exposure
may have been "a cause" (short of being "the
probable" cause) was not sufficient. The evidence did not show
that exposure to asbestos was a probable cause of the cancer. The
proposition that smoking and asbestos work together to jointly
cause or develop cancer was not established.
The decision reinforces the law in Australia that Plaintiffs
must show "probable cause", at least in circumstances
where there are multiple potential causes. It is also notable that
in considering a victim's exposure to asbestos under different
employers, the court commented that the correct approach is to
consider separately for each different employer (rather than
collectively) whether it was more probable that their negligence
was a cause.
The case appears to open the door, in some situations, for a
more conservative approach to be taken by the Courts when
determining issues of causation. However, in the context of dust
diseases, it may be distinguished on the basis that the deceased
was a heavy smoker and did not have any accepted markers of
asbestos exposure, such as asbestos related disease.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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