Keith Evans smoked a pack or two of cigarettes a day for 40 years, until 1991. He was also exposed to asbestos dust in the course of his work for Queanbeyan city council from 1975 to 1990. He was diagnosed with lung cancer in 2006 and died. His widow sued the council, but lost.

The trial judge was not satisfied, on a balance of probabilities, that exposure to asbestos caused the disease that killed Evans.

The NSW court of appeal upheld this in Evans v Queanbeyan City Council, [2011] NSWCA 230 Link available here]. It was open to the trial judge to reach the conclusions he did on the level of Evans’s asbestos exposure, the combined effect of tobacco and asbestos and the resulting risks. The trial judge did not improperly limit analysis of causation to a ‘but for’ test, to the exclusion of material contribution by multiple factors. The value of the judgment for us is the summary provided by Allsop P of material contribution in Australia, the UK and (to some extent) Canada. Allsop P declined to adopt the UK’s modifications of the common law in Fairchild v Glenhaven Funeral Services Ltd [2002] [Link available here] UKHL 22 to permit proof of causation on the basis of a material increase in risk: this kind of change should be left to Australia’s highest court. His account of the law of material contribution will nevertheless be required reading for the Supreme Court of Canada when it tackles causation in the upcoming appeal in Clements v Clements, 2010 BCCA 581[Link available here].