The High Court delivered its much anticipated decision in this case on 3 March 2010. I have to say my impression is a sense of anticlimax…
As I have said in an earlier post, this case was seen amongst some (including me!) as providing an opportunity for the High Court to provide useful guidance as to the appropriate approach for deciding whether negligence or other breach of duty should be found to have caused an adverse outcome, in complex cases. Cases involving ‘evidentiary gaps’ and were identifying whether or not a poor outcome was a consequence of the lack of care/negligence was difficult, because of the complexity of the science behind such conclusion etc, are some such cases.
The case, as is well known, was an asbestos exposure case. Mr Ellis had been exposed to asbestos dust in the course of his work and by the time of this appeal there was no dispute that Amaca were at fault in allowing such exposure to occur.
The complexity to the case came from the fact that Mr Ellis’s medical condition about which the claim arose (and from which he had died by the time of this appeal), was lung cancer.
Apart from exposure to asbestos, on the scientific evidence, it was clear this could have resulted from his heavy tobacco smoking habit (15 to 20/day for 26 years). In fact the unanimous scientific evidence was that such smoking was likely to have contributed to the occurrence of his cancer. The key question was whether his asbestos exposure had also probably contributed.
The medical evidence confirmed (at least on Mr Ellis’ case) that it was quite possible that both his smoking and asbestos exposure could have contributed to his cancer, either through a collective effect or as independent (but cumulative) causes.
The critical legal question was whether, in such circumstances Mr Ellis’ exposure to asbestos could be said to have made "a material contribution" to the occurrence of his cancer (the accepted legal test).
Surprisingly, Bret Walker SC, the fabulous Counsel appearing on Mr Ellis’ behalf, accepted for the purposes of this appeal, that the asbestos exposure should only be accepted as a cause of his lung cancer, if it were accepted on the evidence that it was more likely than not that had such exposure not occurred, his cancer would have been avoided (a lot of negatives in this proposition I know – don’t worry, if you say it 20x you’ll get the gist!).
This was an acceptance of what is known as the ‘but for’ test, a traditional, non-exclusive test used by Courts to determine whether negligent conduct causes a particular bad outcome (or ‘injury").
On the expert evidence (which was primarily epidemiological), the High Court found that such test was not met. It was not more likely than not that had Mr Ellis not been exposed to the asbestos he was, that his lung cancer would not have occurred. This was therefore the end of his claim (given the concession by Mr Walker SC) and the appeal by Amaca was upheld.
In fact the majority of what was, by contemporary standards, a relatively short decision, dealt with this review/consideration of the complex scientific evidence on this topic. No statements of broad application or modifications to the Law concerning the approach to deciding so called ‘causation’ questions were made.
The disappointment of all this (for me at least) is that it seems to me there was a question the case raised, which the court could have (but were not asked to) discussed and explained. This was the fact it is clearly accepted that in some circumstances negligent action can be accepted as causing harm even where it cannot be shown that had such negligent not occcurred, the relevant outcome would have been avoided. In other words, where the ‘but for’ test is not met. The most obvious category of such case is where 2 causes for such injury, each sufficient to cause the injury occur simultaneously. Another is where multiple causes each contribute collectively to the occurrence of harm and the negligence is only one such cause. This latter category is one which is confronted fairly often in medical negligence claims.
In this case, it seems to me that even if Mr Ellis’ asbestos exposure could not be shown to have been necessary for the lung cancer to occur, this did not automatically mean it was not sufficient to be found to have in fact contributed to its occurrence, particularly where it was possible such exposure acted in conjunction with Mr Ellis’ smoking. It is a pity the Court were not asked and so did not comment on the appropriate approach to considering whether such asbestos exposure should have been found to have been a cause of Mr Ellis cancer, on this basis, if, as they did, they were not satisfied that it could be concluded that it would not have occurred but for such exposure.
It is also a pity the court were not asked to consider and discuss the role policy should play in deciding whether, in Law, negligent conduct should be found to have caused harm. It is well recognised by previous case law that policy has a role to play, one would have thought most commonly in situations where science struggles to provide guidance as to whether an ‘injury’ is caused by negligence or not. Because of the constraints on the way Mr Ellis’ argument on appeal was run (no doubt for good reasons, though I am not privy to them), this issue was also not explored by the Court.