High Court ruling on asbestos claim

As you may have recently seen in The Australian, a recent asbestos claim was dismissed in the High Court due to exposure not being a probable cause.
Mr Cotton (deceased) was exposed at various times during his employment (between 1975 and 2002) to asbestos however he also smoked between 15 - 20 cigarettes a day for over 26 years before being diagnosed with lung cancer.

In an action for negligence on behalf of Mr Cotton, the question to be decided by the High Court was whether it could be proven that it was more probable than not that exposure to respirable asbestos was a cause of Mr Cotton's lung cancer.

The High Court looked to the medical evidence about whether the deceased's lung cancer was caused by the inhalation of tobacco smoke, respirable asbestos fibres, both or neither.

In a unanimous decision, the High Court found that there was no scientific or medical evidence that could explain why Mr Cotton developed lung cancer. The evidence presented failed to prove that it was more probable than not that the negligence of any of the defendants was a cause of Mr Cotton's cancer. The appeal failed because although the exposure to asbestos may have been a cause of his lung cancer, it was not a probable cause.

The High Court concluded that, "Saying only that exposure to asbestos may have been a cause of Mr Cotton's cancer is not a sufficient basis for attributing legal responsibility".

The appeal bought on behalf of Mr Cotton's estate was dismissed.

Amaca Pty Ltd v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis [2010] HCA 5

Click here to read a copy of the full decision.