The Victorian Court of Appeal has handed down its decision in Amaca Pty Ltd v King [2011] VSCA 447, an appeal against the Supreme Court jury verdict discussed in the December 2011 issue of the Public law report.

The decision deals with similar issues of causation in mesothelioma cases to those considered by the High Court in Amaca Pty Ltd v Booth [2011] HCA 53 (Booth) and the jury’s substantial award of damages, amongst other issues.

Background

The background facts to this matter are set out in the article Issues in causation in asbestos case in our December 2011 issue of the Public law report. In essence, Mr King alleged that Amaca had negligently exposed him to asbestos fibres for approximately 7 hours at a factory operated by Amaca (Amaca exposure), as a result of which he developed mesothelioma. Mr King had not had any other known exposure to asbestos, except for exposure to asbestos fibres present in the environment generally (Background exposure).

A central issue during trial was whether Mr King’s mesothelioma was caused by the Amaca exposure or the Background exposure. The difficulties surrounding proof of causation in mesothelioma cases are set out in High Court clears the way for mesothelioma cases, in this issue of the Public law report. In essence, medical science cannot explain with certainty the mechanism by which mesothelioma is caused or develops. This creates difficulties for plaintiffs who have been exposed to asbestos from more than one source in establishing a causal link between their mesothelioma and the negligence of one or more defendants.

After unsuccessful attempts by Amaca to have the trial proceed without a jury, and then for the jury verdict to be set aside, judgment was entered for Mr King in accordance with the jury’s verdict in the amount of $1,150,000, which included $730,000 for pain and suffering and loss of enjoyment of life.

Amaca appealed the decision on a number of grounds, including that Mr King had failed to establish a causal link between Amaca’s negligence and his mesothelioma and that the general damages award was too high.

On 22 December 2011, Nettle, Ashley and Redlich JJA handed down a joint decision in which they rejected each of Amaca’s grounds of appeal. The decision was handed down just over one week after the High Court handed down its decision in Booth, and it appears the Court of Appeal relied heavily on the High Court’s reasoning in Booth when determining the appeal.

Causation

A number of Amaca’s grounds of appeal related to the contention that the evidence presented at trial only established that the Amaca exposure increased Mr King’s risk of contracting mesothelioma and therefore was not capable of proving causation.

In considering causation, the Court of Appeal quoted extensively from the majority decision in Booth, and particularly the judgment of Chief Justice French. Whilst reiterating that Mr King had to establish that the Amaca exposure was a cause of his mesothelioma and did not merely increase his risk of contracting the disease, the Court pointed out that evidence of risk can be relevant to causation. Consistent with the decision in Booth, the Court explained that in certain circumstances, evidence of increased risk may permit, an appropriate expert having regard to the “nature and incidents of the correlation”, to infer that the defendant’s conduct was a cause of the injury.

However, in reviewing the evidence presented at trial, the Court of Appeal was not satisfied that the evidence only established that the Amaca exposure increased Mr King’s risk of contracting mesothelioma.

In particular, the Court noted that Mr King’s expert witnesses opined it was more likely than not that the Amaca exposure was a cause of Mr King’s mesothelioma or made a significant contribution to its development and that they justified their opinions on the basis that:

  1. according to current scientific knowledge, all inhaled asbestos fibres have something to do with the progress or development of mesothelioma,
  2. very low exposures have been implicated as a cause of mesothelioma,
  3. whatever the level of the Amaca exposure, it increased Mr King’s risk of contracting mesothelioma because any exposure to asbestos increases the risk of developing mesothelioma, and 
  4. the latency period of about 40 years between the Amaca exposure and Mr King’s first symptoms of mesothelioma was consistent with a causal relationship between the two events.

Amaca did not call evidence from any expert medical clinicians, and instead relied on epidemiological evidence to the effect that it was statistically much more likely that Mr King’s mesothelioma was caused by the Background exposure than the Amaca exposure.

After noting that Mr King’s experts “gave consideration to the particular features of [Mr King’s] case, which included the only competing explanation for the disease and the latency period”, the Court of Appeal held that the jury was entitled to accept the evidence of Mr King’s experts to resolve the issue of causation in his favour.

Damages

As noted above, the jury awarded Mr King damages of $1,150,000, which included $730,000 for non-economic loss.

To put this in context, under the Wrongs Act 1958 (Vic), the current maximum amount that may be awarded to a claimant in Victoria for non-economic loss is approximately $420,000. Pursuant to the Wrongs (Part VB) (Dust and Tobacco-Related Claims) Regulations 2006 (Vic), this maximum amount does not apply to damages for asbestos dust-related injuries. Further, by way of comparison, in 2010, the NSW Dust Diseases Tribunal awarded Mr Booth, who also suffered from mesothelioma, the sum of $326,640 for both economic and non-economic losses.

In its appeal, Amaca argued that an award of $730,000 for non-economic loss was so high that no reasonable jury properly instructed, and with all due attention to the evidence, could arrive at it. In support of its argument, Amaca referred to a number of mesothelioma cases where the award of general damages was significantly less than $730,000, including the NSW Court of Appeal decision in Simon Engineering (Australia) Pty Ltd v Brieger [1990] NSWCA 165, where the award of $85,000 for general damages was considered too high and reduced to $60,000 on appeal.

In considering Amaca’s arguments, the Court of Appeal identified more recent cases where it was probable that the amount awarded for non-economic loss in mesothelioma cases was in the vicinity of $500,000, but accepted that it was likely that there had never been an award of general damages of as much as $730,000 in a mesothelioma case. The Court also acknowledged that there is a significant gap between sums awarded by judges in other States and the sum awarded by the jury in Mr King’s case.

Nevertheless, the Court of Appeal concluded that the $730,000 awarded to Mr King for general damages was not beyond what a reasonable jury could arrive at. In deciding this issue, the Court noted that awards of damages have increased significantly over the past 10 to 20 years and commented:

inasmuch as contemporary society pays and receives vastly greater amounts of remuneration than that of a generation ago … and, at the same time… writes and speaks of the importance of the quality of life to an extent not before contemplated, who doubts that modern society may place a higher value on the loss of enjoyment of life and the compensation of pain and suffering than was the case in the past?”

Implications

The Court of Appeal’s decision in King makes it clear that any exposure to asbestos, regardless of how small, may be considered as causative of a plaintiff’s mesothelioma, despite medical science’s inability to explain precisely the way in which that exposure caused or contributed to the disease.

Also, with the jury’s substantial award of damages being upheld, the Court of Appeal’s decision demonstrates how awards of damages for non-economic loss can vary significantly from plaintiff to plaintiff, between different jurisdictions and over time, especially where jury verdicts are involved. This highlights the need for practitioners to stay in touch with general community sentiments regarding the value of enjoyment of life in order to provide clients with realistic quantum assessments and claim reserves.

On the basis of the Court of Appeal’s decision, it is to be expected that the settlement expectations of plaintiffs in Victoria (and even other states) suffering from mesothelioma will remain significantly increased. The decision may also provide an incentive for plaintiffs in other States who can establish a jurisdictional connection to Victoria to pursue their claim in Victorian courts. n