Mesothelioma, Asbestosis and Other Respiratory Diseases as a Result of Occupational Exposure: Analysis of Recent Case Law

I’ve wanted to write about asbestos litigation for a while now. Asbestos litigation is complex for the fact that mesothelioma – a rare form of cancer that affects the covering of internal organs – is a disease with uncertain aetiology and has an extremely long latency period of up to fifty or more years. I’ve been thinking about asbestos particular in the context of Malaysian litigation, or rather, the lack of it. Lim Heng Huat[1] pointed out in 1999 that so far there were only two cases of asbestosis in Malaysia, but that such figures may be attributable to ‘poor medical verification of diagnosis rather than the true incidence of asbestos related disease’, which would make sense as there were – and probably still are – factories that utilise asbestos in the manufacturing process, and it is highly unlikely that only two diagnoses have been made so far. In the following paragraphs, I will go through two recent mesothelioma cases in brief and see whether similar tactics and strategies can be used in any future asbestos litigation that may occur.

First things first; the Malaysian Occupational Safety and Health Act 1994[2] provides that it is the duty of the employer to make arrangements to ensure that employees are safe from risks to health in connection with the use of operation, handing, storage and transport of plant and substances[3], which expressly includes asbestos[4]. However, it should be noted that the Act states the provisions in that part (along with Parts V and VI) shall not be construed as conferring a right of action in civil proceedings arising from any contravention of the provisions[5]. An identical provision is found in the New South Wales Act[6]. Any suit filed as a result of the contraction of mesothelioma or other respiratory diseases as a result of occupational exposure to asbestos would arise, I suppose, by way of common law negligence.

The basic mesothelioma cases to get to know would be Fairchild v Glenhaven Funeral Services[7] and Barker v Corus[8] which both involved multiple tortfeasors and hence, causative uncertainty, and in the latter, the exploration of the concept of ‘proportionate liability’[9]. The two cases that I’ll briefly skim through in the following paragraphs are interesting for different reasons; the Australian case of Amaca Pty Ltd v Ellis[10] due to the use, interpretation and weight given to epidemiological expert evidence, and the UK case of Sienkiewicz v Greif[11] due to the analysis of the ‘doubled the risk’ rationale which was adopted at the trial stage as opposed to the rule in Fairchild, applied to the recently amended Compensation Act[12].

The case of Amaca involved a man named Paul Steven Cotton who at the time of trial had died from lung cancer. Asides from being exposed to occupational asbestos fibres from two different employers, Mr Cotton had also been a heavy long-term smoker. The defendants sought to prove that his condition could not be attributed to his asbestos exposure alone as not only was the cancer not a type of cancer attributable to the inhalation of asbestos fibres, but also as Mr Cotton had been a long term smoker, hence eliminating liability on their part. Both sides relied on epidemiological expert evidence. What is interesting in this case is that at the Court of Appeal, the majority rejected epidemiological expert evidence as irrelevant.[13] They stated: ‘[E]pidemiological evidence is purely statistical, probabilistic evidence, that says nothing about the actual cause of a disease in a specific case.’[14] [Emphasis added.] David Hamer criticises this statement as being ‘an exaggeration’[15], and I am inclined to agree. Courts have been paying increasing emphasis on epidemiological evidence as circumstantial evidence in cases where legal causation is fragmented or may have multiple sources.

In the High Court of Australia, the judges discussed the epidemiological evidence at great length, showing that the courts are certainly more open to the use of epidemiological evidence in the courtroom. The joint judgement of French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ discussed the use of ‘relative risk’ figures to attempt to attribute the increase of risk that a healthy person would contract lung cancer from exposure to asbestos, exposure to smoking, or to both, or to neither.[16] They also discussed the epidemiological evidence that attempted to measure the chance that a smoker who was exposed to asbestos would contract lung cancer.[17]

Expert testimony was given by Professor de Klerk, Professor Berry, Dr Leigh and Professor Musk, but the views of Dr Leigh were of particular significance, and were debated over in great length by the parties in the proceedings. Dr Leigh, an occupational physician and epidemiologist, gave evidence as to the ‘possible biological mechanisms for the synergistic effect’[18] between Mr Cotton’s exposure to asbestos in the course of his employment and his heavy tobacco use.

In the analysis of relative risk values AND epidemiological evidence, the judges came to a conclusion. They stated: ‘Reduced to its essentials, the epidemiological evidence showed that many sufferers of lung cancer had smoked tobacco, a few had been exposed to asbestos; some of those who had been exposed to asbestos had also smoked; some had been neither smokers nor exposed to asbestos.’[19]

Were the judges placing ‘excessive probative weight’[20] on the epidemiological evidence? Epidemiological evidence shows correlations between certain substances and a given health outcome, but it does so across populations, as opposed to proving that the substance in question caused a particular individual the adverse health outcome in question. The judges discussed the idea that for epidemiological evidence to be used to prove individual causation, the pattern of the population studied must be similar to that of the individual.

This is the difficulty inherent in the use of epidemiological evidence to prove individual causation, particularly in this case, where the deceased had been subjected to the exposure of both asbestos and heavy smoking. However, the judges did give meaning to the epidemiological evidence by concluding that the epidemiological evidence did prove that there was a much lower chance of Mr Cotton contracting lung cancer from asbestos exposure than from smoking.[21] However, this did not mean that the defendants’ actions caused Mr Cotton’s lung cancer. In fact, the judges acknowledged that there was no scientific or medical examination could prove what caused Mr Cotton’s condition.[22]

The experts in the case discussed the possibility of asbestos fibres and smoking working together or contributing cumulatively to cause Mr Cotton’s lung cancer. Dr Leigh gave evidence that was most favourable to this argument.[23]

He stated that some research showed that tobacco smoke and asbestos act at different stages of the cancer, and opined:

'While the precise mechanism of interaction between asbestos and tobacco smoke in causing lung cancer is not known, it is not possible in my view to separate their effects in the individual case where both have acted and it is thus more probable than not, that in this situation, the lung cancer was the singular result of two factors acting together.'[24]

The difficulty with this is that it makes apportionment of liability legally problematic. The question is: What proportion of liability is to be given to the defendants when there is a possibility that asbestos worked together with tobacco smoke to cause Mr Cotton’s lung cancer, and the extent of that coupling is not known?

These are interesting and complex questions. As to the applicability of epidemiological expert evidence, it is clear that courts in Australia are giving increasing weight to epidemiological evidence.

The case Sienkiewicz v Greif[25] involved circumstances altogether different, but also contained very interesting debate on the test applicable in proving causation. The appellant’s mother, Mrs Enid Costello, died of mesothelioma at the age of 74. From 1966 to 1984 she had worked at the respondent’s predecessors-in-title’s factory premises. Although she was an office worker, her job description often called for her to be at different parts of the premises that often were contaminated with asbestos fibres. In addition to that, Mrs Costello had also been exposed to non-tortious exposure as a result of living in a surrounding area that was permeated with low levels of asbestos.

The question was: Where there were two sources of exposure, one tortious and the other non-tortious, what is the test to be applied?

Jeremy Stuart-Smith QC’s arguments were particularly interesting; he argued that where the ‘doubling-of-the-risk’[26] test was fulfilled, the ‘material contribution’ test in Fairchild and the test statutorily provided for in the amendment to the Compensation Act 2006 post-Fairchild need not apply.

The ‘doubling-of-the-risk’ was first propounded in the oral contraceptive case of XYZ & Ors v Schering Healthcare Ltd[27] whereby the claimant could only succeed if the epidemiology showed that the risk of harm arising from the type of contraceptive they had been taking (which it was assumed they had not been warned about and would not have taken if warned) was at least twice that arising from the type which they had formerly been taking (which it was assumed they had been warned about and which risk they had accepted).[28]

Applying this to the case at hand, the appellant would therefore have to prove that the risk of harm arising from occupational exposure to asbestos was at least twice that arising from environmental exposure to asbestos. This proposition was argued for in the face of the ‘material contribution’ test in Fairchild and s3 of the Compensation Act[29], which states:

(1) This section applies where –

(a) a person (“the responsible person”) has negligently or in breach of statutory duty caused or permitted another person (“the victim”) to be exposed to asbestos,

(b) the victim has contracted mesothelioma as a result of exposure to asbestos,

(c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and

(d) the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a) in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).

(2) The responsible person shall be liable –

(a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos –

(i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or
(ii) by the responsible person in circumstances in which he has liability in tort) and

(b) jointly and severally with any other responsible person.

(3) Subsection (2) does not prevent –

(a) one responsible person claimant a contribution from another or

(b) a finding of contributory negligence.

The lawyer for the appellant, Mr Melton, said that this section would apply to all mesothelioma cases. The lawyer for the respondent, Mr Stuart-Smith, argued that the section did not apply to the facts at hand because of two reasons: the first one being that paragraph (d) was not fulfilled, and the second one being that the ‘material contribution’ test need not be used where a more than twofold increase in risk would be sufficient as Mrs Costello had only been exposed to two sources of asbestos.[30]

Lady Justice Smith, however, despite Mr Stuart-Smith’s arguments, concluded that Parliament’s intention in drafting s3 of the Compensation Act was clear, and that it was meant to be applied to all mesothelioma cases, and that it was not open to a defendant to put the claimant to proof of causation by reference to a twofold increase in risk.[31] She held for the appellant, but interestingly included a proviso at Para 40: that in the event her conclusion was proven wrong, there should be a new trial at which the requirement of a more than twofold increase in risk is understood from the outset.[32]

These are both interesting cases, certainly, but perhaps they are cases that raise more questions than answers. What can be concluded from these cases, in summary, are as follows:

· Courts are giving increasing weight to the use of epidemiological expert evidence in the courtroom to help prove individual causation.

· Although the principle in Fairchild has been upheld in Sienkiewicz, judges are willing to consider other theories where there are clear sources of asbestos exposure.

In light of these recent developments, it will no doubt be interesting to see how Malaysian courts apportion liability where there are two or more sources of asbestos exposure.

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[1] Lim Heng Huat, ‘Occupational Safety and Health in the Asbestos Industry in Malaysia’ http://www.miosh.net/articles/Occupational%20Health/asbestos.doc (Accessed 24 November 2010)

[2] Occupational Safety and Health Act 1994 (Laws of Malaysia Act 514)

[3] Occupational Safety and Health Act 1994 (Laws of Malaysia Act 514), s15(2)(b)

[4] Occupational Safety and Health Act 1994 (Laws of Malaysia Act 514), Third Schedule

[5] Id at s59(a)

[6] Occupational Health and Safety Act 2000 (NSW), s32 and s39A

[7] Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22

[8] Barker v Corus (UK) plc [2006] UKHL 20

[9] Id at Para 113

[10] Amaca Pty Ltd v Teresa Ellis [2010] HCA 5

[11] Karen Sienkiewicz v Greif (UK) Ltd [2009] EWCA Civ 1159

[12] Compensation Act 2006 (UK), s3

[13] David Hamer, ‘Mind the ‘Evidential Gap’: Causation and Proof in Amaca Pty Ltd v Ellis’ (2009) 31 Sydney Law Review 465 at 469

[14] Ellis (No. 2) (2008) 37 WAR 1 at 308, in Ibid

[15] Ibid

[16] Amaca Pty Ltd v Ellis [2010] HCA 5 at Para 21

[17] Ibid

[18] Id at Para 23

[19] Id at Para 20

[20] Michael Dore, ‘A Commentary on the Use of Epidemiological Evidence in Demonstrating Cause-in-Fact’ (1983) 7 Harvard Environmental Law Review 429 at 440

[21] Amaca Pty Ltd v Ellis [2010] HCA 5 at Para 64

[22] Id at Para 70

[23] Id at Para 32

[24] Id at Para 33

[25] Sienkiewicz v Greif (UK) Ltd [2009] EWCA Civ 1159

[26] First utilised in the oral contraceptive case of XYZ & Ors v Schering Healthcare Ltd [2002] EWHC 1420

[27] XYZ & Ors v Schering Healthcare Ltd [2002] EWHC 1420

[28] Quoted from the judgment of Smith LJ in Sienkiewicz v Greif (UK) Ltd [2009] EWCA Civ 1159 at Para 20

[29] Compensation Act 2006 (UK), s3

[30] Sienkiewicz v Greif (UK) Ltd [2009] EWCA Civ 1159 at Para 31, per Smith LJ

[31] Id at Para 35

[32] Id at Para 40