High Court of Australia considers the causal nexus between exposure to asbestos and lung cancer

Judgment date: 3 March 2010, Amaca Pty Ltd v Ellis; the State of South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis [2010] HCA 5, High Court of Australia1.

In Brief

The High Court was asked to determine whether it was more probable than not that exposure to respirable asbestos fibres was a cause of the deceased's lung cancer. The High Court overturned the decision of the Western Australian Court of Appeal and found that it was not demonstrated that the deceased's exposure to asbestos made a material contribution to his lung cancer. Scientific evidence which establishes that exposure to asbestos may have been a cause for the development of lung cancer is not a sufficient basis for attributing legal responsibility. Background

Mr Cotton (the deceased) had smoked on average somewhere between 15 and 20 cigarettes per day for in excess of 26 years prior to being diagnosed as suffering from lung cancer in May 2000. The deceased was subjected to occupational exposure to asbestos whilst employed by the Engineering and Water Supply Department of South Australia and by Millennium Inorganic Chemicals Limited.

The deceased's Estate pursued a claim for damages, interest and costs as compensation for the deceased's lung cancer and ultimate death arising out of his exposure to materials containing asbestos dust and fibre.

Supreme Court Decision

The trial judge (Heenan J) found that each of the defendants had been negligent in causing the deceased to be exposed to materials containing asbestos amounting to a breach of the duty of care owed to the deceased and his dependants.

Judgment was entered in favour of both the Estate claim and the dependants' claim for the total sum of $1,526,663.30 plus costs.

Court of Appeal Decision

The majority of the Court of Appeal (Steytler P and McLure JA, Martin CJ dissenting) dismissed each of the appeals pursued by the defendants.

The defendants argued that the...