DDT: causation, the “but for” test and material contribution

I refer to my earlier posting in relation to Amaca Pty Ltd v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis [2010] HCA 5 (3 March 2010) and the issue of causation and note the judgment of AMABA PTY LTD (UNDER NSW ADMINISTERED WINDING UP) v BOOTH; AMACA PTY LTD (UNDER NSW ADMINISTERED WINDING UP) v BOOTH [2010] NSWCA 344 (10 December 2010).

The NSWCA dismissed the appeal of AMACA & AMABA on a number of grounds including causation. The factual basis was different to Ellis (above) in that Mr Booth suffered mesothelioma as opposed to lung cancer. However, there remained a causation issue as to the cumulative effect of chrysotile fibres (lesser potency) causing mesothelioma as separate from other causes derived from the general environment.

The decision at [80] – [114] provides a useful discussion of the application of the “but for” test, which is not required under the Civil Liability Act 2002(NSW), ss 3B, 5D (or the QLD analogue) and the decisions of: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420, Amaca Pty Ltd v Ellis [2010] HCA 5; 240 CLR 111, Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613, Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 and Tabet v Gett [2010] HCA 12; 240 CLR 537.

NB:

AMACA and AMABA have since been granted Special Leave by the High Court in respect of causation, including consideration of the U.K Fairchild -type rule of “increased risk” and most recently its interpretation in Sienkiewicz [2011] UKSC 10; [2011] 2 WLR 523.

Amaca Pty Limited (Under NSW Administered Winding Up) v Booth & Anor; Amaba Pty Limited (Under NSW Administered Winding Up) v Booth & Anor [2011] HCATrans 152 (10 June 2011)

 

Brisbane Barrister – David Cormack

 

 

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